Loza v. State, No. 3-573A55

Docket NºNo. 3-573A55
Citation316 N.E.2d 678
Case DateSeptember 23, 1974
CourtCourt of Appeals of Indiana

Page 678

316 N.E.2d 678
Jeffrey W. LOZA, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 3-573A55.
Court of Appeals of Indiana, Third District.
Sept. 23, 1974.
Rehearing Denied Nov. 4, 1974. Opinion Superseded 325 N.E.2d 173.

Page 679

Sheldon H. Cohan, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Page 680

HOFFMAN, Chief Judge.

Defendant-appellant Jeffrey W. Loza (Loza) was convicted of an aggravated assault and battery by a jury. Judgment was entered on the verdict and appellant was sentenced for a period of not less than one year nor more than five years. His motion to correct errors was overruled and this appeal followed.

Prior to trial, Loza made to the trial court a verified 'Motion and Petition to Dismiss and for Discharge' alleging the existence of certain facts which would appear to invoke the operation of IC 1971, 35-13-10-1, Ind.Ann.Stat. § 9-2412 (Burns Supp.1974). This motion was overruled by the trial court without a hearing, and Loza was made to stand trial on the charge.

IC 1971, 35-13-10-1, supra, provides as follows:

'Self defense--Defense of family--Defense of others.--No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.'

The question now before this court is whether the trial court denied the defendant any right created by this statute when it denied his verified motion for dismissal or discharge without a showing by the State that he did not act in self-defense, where the motion made a prima facie showing that the defendant had acted in self-defense as defined in the statute.

To resolve this question we must look to the purpose and effect of IC 1971, 35-13-10-1, supra, as intended by our Legislature. In doing so, it is proper for this court to examine the express provisions of the statute, the legislative history of the statute, and any legislative records with respect thereto. State ex rel. Jones v. Johnson Circuit Court (1962), 243 Ind. 7, 181 N.E.2d 857. Because the Indiana courts have not construed this statute, prior constructions of similar statutes by our courts must be given great weight, and persuasive authority from other jurisdictions may be considered. Smith v. Beneficial Fin. Co. (1966), 139 Ind.App. 653, 218 N.E.2d 921 (transfer denied).

However, there have been no cases decided by our courts interpreting any other similar statute, and we remain unaided by any legislative history of this section. Furthermore, our research discloses no interpretations of similar statutes existing in our sister-States. 1 Therefore, the only assistance to be had in determining the intent of our Legislature must come from the express language of the statute itself and the applicable rules of statutory construction.

The primary objective of the rules of statutory construction is to determine and effectuate the intent of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225, 40 Ind.Dec. 10. When a court undertakes to ascertain and effectuate that intent, it should be guided by the principles that,

'a statute must be reasonably and fairly interpreted so as to give it efficient operation, and to give effect if possible to the expressed intent of the legislature. It should not be wantonly narrowed, limited or emasculated and rendered ineffective, absurd or nugatory. If possible it should be allowed to perform its intended mission as shown by the existing evils intended to be remedied. Balzer v. Waring (1911), 176 Ind. 585, 590, 95 N.E. 257, 48 L.R.A., N.S., 834; Walters v. Bank of America (1937), 9 Cal.2d 46, 52,

Page 681

69 P.2d 839, 110 A.L.R. 1259, 1264; DeTarr v. State (1906), 37 Ind.App. 323, 327, 76 N.E. 897; Perry Twp. v. Indianapolis Power & Light Co. (1946), 224 Ind. 59, 69, 64 N.E.2d 296; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 617, 62 N.E. 492; Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 427, 63 N.E. 849.' State v. Griffin (1948), 226 Ind. 279, at 284, 79 N.E.2d 537, at 540.

Furthermore, the statute here at issue arguably affects our criminal laws. If it is found to do so, it must be remembered that our criminal laws are statutory and any ambiguities in them must be construed most favorably to the accused. Shaw v. State (1965), 247 Ind. 139, 145, 211 N.E.2d 172. 2

To determine whether the statute here at issue affected the rights of the defendant in the case at bar, it must first be determined if the statute has any effect upon our statutory criminal law. IC 1971, 35--13--10--1 supra, provides that no one shall be placed in 'legal jeopardy of any kind whatsoever' by reason of certain acts.

The term 'jeopardy' was early defined by our Supreme Court in The State v. Nelson (1866), 26 Ind. 366, at 367, as follows:

'(A) party is put in 'jeopardy', danger, hazard, liability to be punished, by the commencement of a prosecution against him.'

Thus, IC 1971, 35-13-10-1, supra, is clearly applicable to criminal prosecutions generally, and consequently to the defendant herein. However, because the question of whether the statute has any applicability to civil cases is not now before the court, the above determination should not be read so as to preclude this possibility.

It is equally clear that the Legislature intended that this statute bar jeopardy altogether in certain instances. This intent is eminently apparent from the Legislature's proscriptive wording of the statute:

'No person in this state shall be placed in legal jeopardy of any kind whatsoever * * *.' (Emphasis supplied.)

Therefore, IC 1971, 35-13-10-1, supra, must have been intended by the Legislature to operate as a bar to criminal prosecution at some point before jeopardy attaches to a criminal defendant who has acted within its scope.

The latest point in the criminal justice process at which the statute was intended to operate as a bar to further action against a defendant can be determined by an examination of cases which have decided when jeopardy attaches to a criminal defendant. In Crim v. State (1973), Ind.App., 294 N.E.2d 822, at 828, 36 Ind.Dec. 132, the court stated:

'It is elementary under both the Indiana and Federal Constitutions and cases that jeopardy attaches when a criminal trial commences before a judge or jury and this point has arrived when a jury has been selected and sworn even though no evidence has been taken.' (Citations omitted.)

Since jeopardy attaches in a jury trial when the jury is sworn, Gullett v. State (1953), 233 Ind. 6, 116 N.E.2d 234; Kelley v. State (1973), Ind.App., 295 N.E.2d 372, 375; and in a trial to the court when the trial has commenced, i. e., when the first witness is sworn, Crim v. State, supra; Haase v. The State (1894), 8 Ind.App. 488, 493, 36 N.E. 54, this statutory bar must arise prior to these events.

Because the statute must be construed as a bar to the prosecution of one who has

Page 682

committed criminal acts in self-defense, it is substantially different from the common-law rules of self-defense, which operate as a factual justification for the crime whose existence is determined by the jury rather than an absolute bar to prosecution. An overview of the common-law rules of self-defense in Indiana is given in Bange v. State (1958), 237 Ind. 422, at 425-426, 146 N.E.2d 811, at 812-813:

'The rule governing the definition of self-defense in Indiana is concisely stated in Myers v. State (1922), 192 Ind. 592, 594, 595, 137...

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4 practice notes
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...a concept which does not crystalize until the evidence has been developed during trial. Compare Loza v. State (1974 3rd Dist.), Ind.App., 316 N.E.2d 678. This is perhaps demonstrated by the following portion of Jennings v. State, 'The elements of self-defense, proof of which is incumbent up......
  • State v. Daniels
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • November 5, 1975
    ...While the Crim case involved a jury trial situation, it laid the foundation for a subsequent Indiana case, Loza v. State, Ind.App., 316 N.E.2d 678, 681 (1974), which stated that jeopardy attaches in a trial to the court 'when the trial has commenced, i.e., when the first witness is Californ......
  • Smith v. Review Board of the Indiana Employment Security Division, No. 2-581A173
    • United States
    • Indiana Supreme Court of Indiana
    • September 2, 1982
    ...is clearly repugnant to the legislative intent that the taxpayer have thirty days to deliver statutory notice." Id. 262 Ind. at 393, 316 N.E.2d at 678. Accord, City of South Bend v. Users of Sewage Disposal, (1980) Ind.App., 402 N.E.2d To hold that a procedural technicality unrelated to any......
  • Loza v. State, No. 375S66
    • United States
    • Indiana Supreme Court of Indiana
    • April 3, 1975
    ...Acts 1963, ch. 122, § 1. 1 The judgment of the trial court was reversed by the Court of Appeals, Third District. (See Ind.App., 316 N.E.2d 678). The appeal raises seven general Page 176 Issue I. The Court of Appeals reversed the judgment of the trial court upon this issue. The State has pet......
4 cases
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...a concept which does not crystalize until the evidence has been developed during trial. Compare Loza v. State (1974 3rd Dist.), Ind.App., 316 N.E.2d 678. This is perhaps demonstrated by the following portion of Jennings v. State, 'The elements of self-defense, proof of which is incumbent up......
  • State v. Daniels
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • November 5, 1975
    ...While the Crim case involved a jury trial situation, it laid the foundation for a subsequent Indiana case, Loza v. State, Ind.App., 316 N.E.2d 678, 681 (1974), which stated that jeopardy attaches in a trial to the court 'when the trial has commenced, i.e., when the first witness is Californ......
  • Smith v. Review Board of the Indiana Employment Security Division, No. 2-581A173
    • United States
    • Indiana Supreme Court of Indiana
    • September 2, 1982
    ...is clearly repugnant to the legislative intent that the taxpayer have thirty days to deliver statutory notice." Id. 262 Ind. at 393, 316 N.E.2d at 678. Accord, City of South Bend v. Users of Sewage Disposal, (1980) Ind.App., 402 N.E.2d To hold that a procedural technicality unrelated to any......
  • Loza v. State, No. 375S66
    • United States
    • Indiana Supreme Court of Indiana
    • April 3, 1975
    ...Acts 1963, ch. 122, § 1. 1 The judgment of the trial court was reversed by the Court of Appeals, Third District. (See Ind.App., 316 N.E.2d 678). The appeal raises seven general Page 176 Issue I. The Court of Appeals reversed the judgment of the trial court upon this issue. The State has pet......

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