Landess v. State, 24533.
| Decision Date | 21 December 1928 |
| Docket Number | No. 24533.,24533. |
| Citation | 164 N.E. 267,200 Ind. 440 |
| Parties | LANDESS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Jay Circuit Court; R. D. Wheat, Judge.
Eb Landess was convicted of petit larceny, and he appeals. Reversed, with directions.
John J. O'Neill, of Muncie, and Malcolm V. Skinner, Frank Gillespie, and James J. Moran, all of Portland, for appellant.
U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.
This was an action by the state of Indiana upon an affidavit of John Long, filed in the Jay circuit court, charging Eb Landess and another with the larceny of ten chickens of the value of $1 each, on September 6, 1923, in Jay county, Ind.; the said chickens being the property of John Long.
The defendants waived arraignment and pleaded not guilty. They were tried together before a jury, the trial resulting in finding the defendants each guilty of petit larceny. Judgment was rendered on the verdict, and a motion for a new trial was filed and overruled, and appellant appeals from such judgment. The error relied on for reversal is that the court erred in overruling appellants motion for a new trial.
The specifications in the motion for a new trial are: That the verdict of the jury is contrary to law. That the court erred in giving to the jury of its own motion each of instructions numbered 1 to 11, both inclusive. That the court erred in refusing to give to the jury each of instructions numbered 1 to 10, both inclusive, requested by the defendants.
Under “Points and Authorities,” the appellant alleged in his brief that instruction No. 7, given by the court of its own motion, places the burden upon the defendant to establish by evidence the facts necessary to secure his acquittal.
[1][2] We do not construe this instruction to mean what the appellant claims, or to cast any burden upon the defendant in the case. It is the law that a reasonable doubt may arise from the evidence or the lack of evidence. The defendant is not required to establish any fact which would entitle him to an acquittal by any degree of evidence, so that if the whole evidence or lack of evidence leaves a reasonable doubt in the mind of the jury, or of any one of them, as to the defendant's guilt of the offense charged, then the jury cannot find the defendant guilty.
[3][4] The appellant tendered instruction No. 3 upon the subject of reasonable doubt, and says a reasonable doubt may arise or be created by the want of evidence as well as by the evidence. This principle is embodied in instructions given by the court of its own motion. Instruction No. 5, tendered by appellant and refused by the court, was on the subject of reasonable doubt; but the principle therein stated was covered by other instructions given by the court of its own motion. The same may be said of instruction No. 6, tendered by the appellant and refused by the court. No instruction was given by the court upon...
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