Loftus v. State, 28101.

• Decision Date: 02 November 1945
• Docket Number: No. 28101.,28101.
• Citation: 63 N.E.2d 290,223 Ind. 647
• Parties: LOFTUS v. STATE.
• Court: Indiana Supreme Court

223 Ind. 647

63 N.E.2d 290

LOFTUS

v.STATE.

No. 28101.

Supreme Court of Indiana.

Nov. 2, 1945.

Robert J. Loftus was convicted of murder in the second degree, and he appeals.

Affirmed.Appeal from Superior Court, St. Joseph County; J. Fred Bingham, judge.

Harry Taylor, of South Bend, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst. Atty. Gen., for appellee.

STARR, Judge.

An indictment in two counts was returned against appellant in the LaPorte Circuit Court, the first charging murder in the first degree, and the second murder in the second degree. On a plea of not guilty, said cause was sent to the Superior Court of St. Joseph County on a change of venue, there a trial was had by jury and a verdict returned finding the appellant guilty of murder in the second degree, and fixing his penalty at life imprisonment.

Appellant assigned as error the overruling of his motion for a new trial and the overruling of his motion in arrest of judgment.

The only cause for a new trial which is set out in appellant's brief and supported by Propositions, Points and Authorities is the refusal of the court to give defendant's requested instruction No. 3 which is as follows: ‘Before the State can ask a conviction of this defendant in this case it is required to prove, beyond a reasonable doubt, that the defendant, Robert Loftus, feloniously killed William Tennell or that he was present, aiding and abetting some other person in said killing at the place and time and in the manner and form alleged in the indictment. It is not sufficient, if the State has enveloped the death of William Tennell in mystery that is incapable of explanation without inferring the defendant's guilt. To convict, the State is required to explain all mystery sufficiently to remove all reasonable doubt and establish facts that are susceptible of explanation upon no reasonable solution, and beyond all reasonable doubt.’

Apparently this tendered instruction is based on dictum expressed by this court in the case of Schusler v. State, 1868, 29 Ind. 394. The evidence is not in the record, but we cannot conceive how this instruction could be proper in any case. Certainly no harm was done by the refusal of this instruction as the jury was adequately instructed on the question of reasonable doubt by the other instructions which were given, particularly appellant's instructions No. 12, 13, and 14, and State's instruction No. 17.

Said motion in arrest is substantially as follows: That defendant was heretofore indicted by the Grand Jury of LaPorte County under jurisdiction of the LaPorte Circuit Court for the same offense as is herein charged; that after said indictment a change of venue was taken to the St. Joseph Circuit Court, where a trial was had and the defendant was found guilty, a copy of said indictment is attached to said motion; that after a finding of guilty and judgment thereon said cause was appealed to this court where the same was reversed by this court whose opinion is reported in Loftus v. State, 1944, 222 Ind. 139, 52 N.E.2d 488; that thereafter said opinion was duly certified and filed in the St. Joseph Circuit Court, and said opinion and mandate have not been modified and were in full force and...