Keifer v. State

• Decision Date: 23 February 1933
• Docket Number: No. 25658.,25658.
• Citation: 184 N.E. 557,204 Ind. 454
• Parties: KEIFER v. STATE.
• Court: Indiana Supreme Court

204 Ind. 454

184 N.E. 557

KEIFER

v.STATE.

No. 25658.

Supreme Court of Indiana.

Feb. 23, 1933.

Appeal from Miami Circuit Court; Hurd J. Hurst, Judge.

William J. Keifer was convicted of murder in the second degree, and he appeals.

Reversed and remanded, with directions.

Harry K. Cuthbertson, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

TREANOR, Chief Justice.

Appellant was indicted by the Howard county grand jury for murder in the first degree, and upon change of venue to the Miami circuit court the cause was submitted to a jury on November 21, 1927, and appellant was convicted of murder in the second degree. His first and sixth assignments of error question the Miami circuit court's jurisdiction of the cause on the ground that the original indictment was not transmitted by the clerk of the Howard circuit court with the transcript of the proceedings in that court to the Miami circuit court, and the second, third, and fourth assignments of error present for review the action of the Miami circuit court, after trial, and after appellant had filed his motion in arrest of judgment challenging the jurisdiction of the Miami circuit court on the ground that no indictment against him had been filed in that court, in entering an order nunc pro tunc upon appellee's motion showing that the original indictment was filed in the Miami circuit court as of November 21, 1927, and changing the file mark on said indictment from December 5, 1927, to November 21, 1927. It appears from the record that a transcript of the proceedings of the Howard circuit court, showing the action of that court in changing the venue of the cause, upon appellant's motion, to the Miami circuit court, together with appellant's original motion for change of venue from Howard county, was filed in the office of the clerk of the Miami circuit court on May 19, 1927, but it does not appear that the original indictment returned by the Howard county grand jury was deposited at that time with the clerk of the Miami circuit court. It further appears that on November 21, 1927, the defendant appeared in open court and waived arraignment and entered a plea of not guilty, and the cause was submitted to a jury for trial. Appellant contends that the foregoing does not sufficiently comply with our statute¹ to give the Miami circuit court jurisdiction. On November 25, 1927, the jury was instructed and on November 26, 1927, a verdict of guilty was returned. Appellee's instruction No. 1, given by the court, sets out in full the contents of the indictment, and all the instructions tendered and given or refused were made a part of the record by appellant's bill of exceptions No. 1, filed December 13, 1927. Thereafter, on December 17, 1927, appellant filed his motion for a new trial and motion in arrest of judgment, in which motions he first attacked the jurisdiction of the Miami circuit court on the ground that no indictment had been delivered to or filed with the clerk of that court.

There is no doubt that the original indictment in some manner got to the Miami circuit court and was with the transcript and other papers during the trial; also it is unquestioned that it was marked “filed” as of December 5 during the trial. We need not decide whether the trial court erred in ordering the file mark changed from December 5th to November 21st, as we are reversing the cause on other grounds, and no question on this point can arise on a new trial, since it clearly appears that the indictment is now filed with the trial documents.

Under appellant's fifth assignment of error, that the court erred in overruling his motion for a new trial, he presents sixteen propositions. Of these we need only consider the second, fourth, eighth, and ninth.

Appellant objects to the giving of instruction No. 4,² which was tendered by the state. We think there is merit in appellant's position. While it is true, that the words “premeditated malice” contained in the statutory definition of first degree murder³ are eliminated from the definition of second degree murder,⁴ yet that fact does not correctly describe the distinction between first and second degree murder. The instruction calls attention to the omission of the words “premeditated malice” from second degree murder, and states that “malice aforethought means the intention to kill,” and the effect of these statements might easily have been to mislead the jury into believing that “malice aforethought,” or an “intention to kill,” is not an element of second degree murder, and that a much greater distinction exists between first and second degree murder, and a much less distinction between second degree murder and manslaughter, than in fact exists.

“The principle involved, by which murder in the first degree is distinguished from murder in the second degree, is this: In the former, premeditated malice requires that there should be time and opportunity for deliberate thought; and that, after the mind conceives the thought of taking the life, the conception is meditated upon, and a deliberate determination formed to do the act; that being done, then no difference how soon afterward the fatal resolve is carried into execution, it is murder in the first degree.

“While, in murder in the second degree, the purpose or intention to kill is followed immediately by the act, it is not premeditated; the time and circumstances are not such as to allow of deliberate thought; yet to make it murder, even in the second degree, there must be a formed design and purpose to kill.” Fahnestock v. State (1864) 23 Ind. 231, 261, 263.

The fourth cause for new trial presented by appellant is the giving of instruction No. 13.⁵ In Doty v. State (1845) 7 Blackf. 427, the jury were told that, “if the defendant has omitted to avail himself of evidence within his reach, by which he might have repelled that which was offered to his prejudice, his omission to do so supplies a strong presumption that the charge is well founded.” The Supreme Court, in reversing the judgment, said:

“*** There is an error in the charge to the jury which must have reversed the judgment. It is undoubtedly true, that when circumstances are proved which induce a strong suspicion of the prisoner's guilt, but which, if untrue, it is manifest he can disprove, or, if reconcileable with his innocence, he can explain, and he fails to disprove or explain them, the jury are authorized to draw from such failure a forcible inference against him. 2 Stark. Ev., 937. But this inference is merely a presumption of fact, and does not constitute a presumption of law to be given by the Court to the jury as a fixed and binding rule of jurisprudence. The failure is a circumstance which, like any other circumstantial evidence, the jury are to weigh, and of the weight and tendency of which they are the sole judges. Something beyond this doctrine is contained in the charge under consideration. The jury were instructed, that if the prisoner had within his reach evidence by which he could have repelled the evidence which had been given against him, and he failed to produce it, the failure raised a strong presumption of his guilt. If, as the hypothesis contained in the charge implies, the prisoner actually had it in his power to repel and explain away the force of the adverse evidence, it is difficult to perceive how his failure to do so could raise a presumption of his guilt. The hypothesis itself presupposes his innocence whether he adduced the rebutting evidence or not; for if such evidence be admitted to be in his power, the presumption is that he is innocent.”

In Chaffee & Co. v. United States (1873) 85 U. S. (18 Wall.) 516, 545, 21 L. Ed. 908, the United States Supreme Court had under consideration an instruction which in effect told the jury that, where a party has proof in his power which, if produced, would render material facts certain, the law presumes against him if he omits to produce it and authorizes a jury to resolve all doubts adversely to his defense; that, although the case must be made out against the defendants beyond all reasonable doubt, yet the course of the defendants may have supplied in the presumptions of law all which this stringent rule demanded. Field, J., speaking for that court, said:

“The purport of all this was to tell the jury that, although the defendants must be proved guilty beyond a reasonable doubt, yet if the government had made out a prima facie case against them, not one free from all doubt, but one which disclosed circumstances requiring explanation, and the defendants did not explain, the perplexing question of their guilt need not disturb the minds of the jurors; their silence supplied in the presumptions of the law that full proof which should dispel all reasonable doubt. In other words, the court instructed the jury, in substance, that the government need only prove that the defendants were presumptively guilty, and the duty thereupon devolved upon them to establish their innocence, and if they did not they were guilty beyond a reasonable doubt. We do not think it at all necessary to go into any argument to show the error of this instruction. The error is palpable on its statement. All the authorities condemn it. [Citing Doty v. State, supra.] *** The instruction sets at naught established principles, and justifies the criticism of counsel that it substantially withdrew from the defendants their constitutional right of trial by jury, and converted what at law was intended for their protection-the right to refuse to testify-into the machinery for their sure destruction.”

In Lee v. State (1901) 156 Ind. 541, 60 N. E. 299, 302 cited by appellee, the only question presented was that the verdict of the jury was contrary to both the law and the evidence, and this court did not consider the correctness of any instruction involving the questions presented by instruction No. 13. The evidence on the part of...