Dorak v. State

• Citation: 109 N.E. 771,183 Ind. 622
• Decision Date: 15 October 1915
• Docket Number: No. 22788.,22788.
• Parties: DORAK v. STATE.
• Court: Supreme Court of Indiana

183 Ind. 622

109 N.E. 771

DORAK

v.STATE.

No. 22788.

Supreme Court of Indiana.

Oct. 15, 1915.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Thomas Dorak was convicted of murder, and he appeals. Reversed, with instructions.Noble H. Wible, of Indianapolis, for appellant. Richard M. Milburn, Atty. Gen., Alvah J. Rucker, Pros. Atty., of Indianapolis, and Horace M. Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney, and Wilbur T. Gruber, Asst. Attys. Gen., for the State.

SPENCER, C. J.

Appellant was charged by indictment duly returned by a grand jury in the Marion criminal court with the murder of George Wise on July 26, 1914. He was tried by a jury, under plea of self-defense, found guilty of murder in the first degree, and his death decreed as the penalty.

Error is here predicated on the overruling of his motion for a new trial, and under this assignment the only question necessary to be determined is whether prejudicial and harmful error was committed by the trial court in giving to the jury of its own motion instruction No. 17. Said instruction reads as follows:

“While it is necessary for the state to establish the killing of the deceased by the accused beyond a reasonable doubt, and to show the facts of the death of the deceased, and to show that the person alleged to have been killed is actually dead, yet where the defendant attempts to justify the killing as having been done in self-defense, the burden is on the defendant to show he was justified in the act, and in the use of a deadly weapon, or to offer evidence sufficient to raise in your minds a reasonable doubt as to his justification in such acts.”

Appellant insists that this instruction places an “undue burden” on him, in that it requires a defendant to show that he was justified in the act, or to “offer evidence” to raise a reasonable doubt as to his justification. The language of this court in referring to a somewhat similar instruction, and in holding it to be erroneous, is applicable here:

“The inevitable tendency of the instruction given would be to lead the jury to understand that, as applied to the affirmative defense, the burden shifted, and that, while the state must satisfy them of the fact of the homicide by evidence and beyond a reasonable doubt, the defendant was in turn required to satisfy them by some degree of proof that it was justifiable.” Trogdon v. State, 133 Ind. 1, 10, 32 N. E. 725, 728.

In Parker v. State, 136 Ind. 292, 35 N. E. 1105, it is said:

“In criminal cases, the entire burden is upon the state from the beginning, and the accused is not bound to explain anything, and his failure to do so cannot be considered as a circumstance tending to prove his guilt.”

In Walters v. State, 108 N. E. 583, this language is used:

“It is sufficient to entitle the defendant to acquittal if the evidence in the case is such as to create or leave a reasonable doubt as to his guilt, regardless of whether it is produced by the defendant or by the state.”

Where one is charged with crime, the law of...