State v. Johnson

• Decision Date: 27 January 1945
• Docket Number: 8587
• Citation: 70 S.D. 322,17 N.W.2d 345
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. JOHNSON, Appellant.
• Court: South Dakota Supreme Court

70 SD 322, 17 NW2d 345 (1945)

STATE OF SOUTH DAKOTA,

Respondent,

v. JOHNSON,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. Van Buren Perry, Judge

#8587—Reversed on Rehearing

(See 14 NW2d 420)

Max Stokes, Aberdeen, SD

George J. Danforth, Sioux Falls, SD

Attorneys for Appellant.

George T. Mickelson, Attorney General

Charles P. Warren, Assistant Attorney General, Pierre, SD

Elmer Thurow, State’s Attorney, Aberdeen, SD

Attorneys for Respondent.

Opinion Filed Jan 27, 1945

SICKEL, Judge.

The defendant was tried in the circuit court of Brown county on an information charging him with grand larceny of hogs. The jury found him guilty and the court imposed a sentence of twenty years imprisonment. Motion for a new trial was denied and defendant appealed. The judgment was affirmed in this court. 14 NW2d 420. Defendant filed a petition for rehearing, which was granted.

In the petition for rehearing the appellant asks the court to reconsider his assignment of error which is based on instruction number 10 relative to an alibi as a defense. The appellant claims that this instruction amounts to an invasion of the province of the jury who are the exclusive judges of the weight and sufficiency of the evidence, and of all questions of fact.

That part of instruction number 10 which is in issue under this assignment of error reads as follows:

“If you believe from the evidence in this case that the plea of alibi was not interposed in good faith, or that the evidence to sustain it is simulated, false and fraudulent, then that would be a discrediting circumstance to which you may look in connection with all the other evidence in determining the guilt or innocence of the defendant. You will examine the evidence on the subject of alibi with care.”

The courts generally hold that an instruction which advises the jury that an unsuccessful attempt to prove an alibi is a circumstance to be weighed against the defendant on the question of the sufficiency of the evidence to prove defendant’s guilt beyond a reasonable doubt, is erroneous and prejudicial. State v. Blair, 115 W. Va. 549, 177 SE 307; Asher v. State, 201 Ind. 353, 168 NE 456, 67 ALR 118, and annotation 128 supplementing annotation 14 ALR 1439; People v. Rabinowitz, 290 NY 386, 49 N.E.2d 495, 146 ALR 1373, and annotation 1385; People v. Russell, 266 NY 147, 194 NE 65; Burtnett v. United States, 10 Cir., 62 F2d 452.

In the case of State v. Blair, supra, the instruction given by the court was in all material respects identical with the instruction given in this case and the court said [115 W. Va. 549, 177 SE 3087:

“‘The law is peculiarly jealous of any encroachment by a trial court on the province of the jury, who are the exclusive judges of the weight to be attached to the evidence of any witness, and it is error for a court in the trial of the case to intimate any opinion in reference to matters of fact which might in any degree influence the verdict. ... The propriety of such an instruction, especially in those jurisdictions which scrupulously uphold the independence of juries, may be doubted; since the weight to be attached to this circumstance is exclusively for the jury, and where they receive such an admonition from the bench, they are liable to give undue weight to it.’”

The case of Asher v. State, supra, was one in which the instruction given by the court was identical with the one given in this case except that there the instruction omitted the word “simulated.” The court said [201 Ind. 353, 168 NE 458]

“In order to sustain an alibi it is not necessary for the jury to find as a fact that the defendant was not in the place of the commission of the crime at the time it was committed. The defendant in a criminal case is never required to establish any fact which would entitle him to an acquittal by any degree of evidence, but if upon the whole evidence the jury entertains a reasonable doubt of his guilt, then it is the duty of the jury to acquit.” The court then quotes from another Indiana case Albin v. State, 63 Ind. 598, as follows:

“We know of no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than it does upon evidence tending to prove any other fact.”

The court then makes this comment:

“The trial court should not in any manner in its charge to the jury disparage or cast suspicion upon any legitimate defense interposed in an action, such as the defense of insanity, self-defense, or alibi, nor upon any class of legitimate evidence offered to support a defense, ...

These instructions, Nos. 4 and 5, given by the court of its own motion, are clearly erroneous and harmful to the appellant and require a reversal of the judgment.”

In the case of Burtnett v. United States, supra , the circuit court of appeals considered an instruction that if the jury believed:

“ ... That the plea of an alibi was not interposed in good faith, or that the evidence to sustain it was not true, then this is a discrediting circumstance to which you may look in connection with all of the other evidence in determining the guilt or the innocence of the defendant ... .”

The opinion says: “The quoted comment was unfair and unjust. ... Evidence of an alibi has no inherent characteristics which make its verity doubtful.”

In the case of People v. Russell, supra [266 NY 147, 194 NE 67], the court instructed the jury that:

“An unsuccessful attempt to establish an alibi is always a circumstance of great weight against a prisoner because the resort to that species of defense implies an admission of the truth and relevancy of the facts alleged and the correctness of the inference drawn from them, if they remain uncontradicted. And where the defense of alibi fails, it is generally on the ground that the witnesses are disbelieved and the story considered to be a fabrication.”

In considering an assignment of error on this instruction the court stated:

“He told the jury further, in effect, that if it did not believe the testimony of the defendant’s witnesses, it might consider the ‘defense of alibi’ a fabrication and, therefore, corroboration of the people’s witnesses and an admission by the defendant of the truth and relevancy of their testimony. He thus placed upon the defendant a burden of proof which in law rests upon the people.”

The court then considered particularly that part of the instruction which authorizes the jury to infer fabrication of alibi testimony and corroboration of people’s witnesses on the basis of disbelief alone, saying:

“Disbelief of the defendant’s witnesses would be the inevitable result of belief of the people’s witnesses. It could not, at the same time, be corroboration of the people’s witnesses.

An honest defendant may fortify his denial of the charge against him by other evidence which, if accepted, would demonstrate the falsity of the charge, without thereby subjecting himself to the suspicion that his denial is false and the evidence produced by him fabricated, unless there is independent evidence of such fabrication. The burden of proof of guilt beyond a reasonable doubt may never be shifted from the people to the defendant. The presumption of innocence continues throughout the trial. The charge in this case has substantially deprived the defendant of this fundamental right.”

In this case there was no direct or independent evidence of bad faith on the part of the defendant in interposing the defense of alibi. Neither was there any evidence to show that the alibi testimony was simulated, false and fraudulent. Yet the instruction given in this case permitted the jury to so find, and to treat such finding as a “discrediting circumstance” against the defendant, even as corroboration of the state’s witnesses, in arriving at a verdict.

The instruction under consideration seems to have had its origin in Alabama. In the case of Allbritton v. State, 94 Ala. 76, 10 So. 426, the court considered an instruction that “An unsuccessful attempt’ to prove an alibi is ... of great weight against the prisoner.” The opinion states:

“ ... There can be no rule of law, founded on logic or principle, common sense or justice, which recognizes a distinction between the consequent weight of an unsuccessful attempt to establish an alibi, and of an unsuccessful attempt to prove any other...