State v. Thornton

• Citation: 73 N.W. 196,10 S.D. 349
• Parties: STATE v. THORNTON.
• Decision Date: 03 December 1897
• Court: Supreme Court of South Dakota

73 N.W. 196

10 S.D. 349

STATE v. THORNTON.

Supreme Court of South Dakota

December 3, 1897

Error to circuit court, Miner county; F. B. Smith, Judge.

Joseph Thornton was convicted of burglary, and brings error. Affirmed.

Fuller J., dissenting.

A. E Chamberlain, for plaintiff in error. L. J. Martin, for the State.

CORSON P. J.

The defendant was tried upon an information, and convicted of the crime of burglary, in the circuit court of Miner county. A writ of error was sued out of this court to that court, and the case is now before us for review. Only three errors assigned need be considered. They are, in effect, as follows (1) The court erred in allowing the state to add to the information the names of witnesses sworn on the part of the state; (2) the court erred in instructing the jury upon the credibility and weight to be given to the evidence of the defendant as a witness in his behalf; (3) that the court erred in instructing the jury as to the question of alibi upon which defendant introduced evidence.

The question presented by the first assignment of error is ruled by the decision in State v. King (S. D.) 70 N.W. 1046, and need not be further considered.

The question raised by the second assignment of error was substantially disposed of in State v. Smith, 8 S. D. 547, 67 N.W. 619. The contention of counsel for the plaintiff in error that the jury might have understood the court, in speaking of the crime charged, as referring to some crime other than that for which he was then being tried, is not tenable. The fact that a witness had incidentally spoken of the defendant as having been arrested upon another charge would hardly be sufficient to warrant us in believing that the jury could have been misled by the charge of the court when speaking of the crime with which the "defendant is charged." We think this court must assume that the jury understood the court as referring to the crime for which defendant was being tried.

The third assignment of error presents an important question, not heretofore determined by this court. Upon the question of alibi, the court charged the jury as follows: "The defendant claims as one of his defenses what is known in law as an 'alibi'; that is, that, at the time the crime with which he is charged was committed, he was at a different place, so that he could not have participated in its commission. Such a defense is proper and legitimate; and upon this question the court instructs you that where the state makes out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is upon the defendant to make out his defense as to an alibi; and when the proof is all in, both that given for the defendant and for the state, then the primary question is (the whole evidence being considered), is the defendant guilty beyond a reasonable doubt?--the law being that if, after you have considered all the evidence, as well as that touching the question of alibi as the criminating evidence introduced by the state, you have a reasonable doubt of the guilt of the accused, you should acquit; if you have not, you should convict."

The contention of the counsel for plaintiff in error is that the court erred in instructing the jury that "where the state makes out such a case as would sustain a verdict of guilty," for the reason that the jury might have understood by that expression that the evidence should preponderate in favor of the prosecution, and not that the prosecution should prove such a state of facts as would warrant the jury in believing the defendant guilty beyond a reasonable doubt. But we think this view cannot be sustained, for the reason that the court, in its charge, had, in at least two instances before it came to this part of the charge, instructed the jury that they could not convict the defendant, unless the evidence satisfied them beyond a reasonable doubt of his guilt. Such being the case, no reasonable jury could have possibly understood that the court was speaking of any other state of facts as sustaining a verdict of guilty. The statement itself also necessarily implies that the evidence of the prosecution must be such as to satisfy the jury beyond a reasonable doubt of the guilt of the defendant. No other state of facts would sustain a verdict. Hence, in either view, the charge, in the respect mentioned, is not subject to criticism.

Counsel for the plaintiff in error further contends that the court erred in instructing the jury that "the burden was upon him [the defendant] to make out his defense as to an alibi"; and he relies confidently upon this alleged error for a reversal of the judgment. There is in the earlier cases an irreconcilable conflict in the authorities as to the nature and effect of evidence tending to prove an alibi, and to what extent the defendant must sustain such a defense by his evidence, when the state's evidence prima facie establishes the guilt of the defendant beyond a reasonable doubt; some courts holding that such evidence must be sufficient to prove the defense beyond a reasonable doubt. In others it was held that the evidence to prove the alibi must be such as to preponderate over the evidence of the prosecution. In the later and we think the better considered cases, the doctrine seems to prevail that, if the evidence upon the defense of alibi is sufficient to raise a reasonable doubt as to the guilt of the defendant when considered in connection with all the evidence in the case, he should be acquitted; but that the burden of making such proof is upon the accused seems to be quite generally recognized.

We shall not attempt in this opinion to do more than to call attention to a few of the later cases and text writers, as the cases seem to be fully collated in 2 Am. & Eng. Enc. Law (2d Ed.) under the title "Alibi." The learned author of that article, on page 56, states his conclusions as follows: "The true doctrine seems to be that where the state has established a prima facie case, and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt of the guilt of the accused. The distinctions which the courts have attempted to make with reference to the burden of proof are apparently of little practical value, as it is universally held that if the evidence introduced to prove an alibi, when considered by itself, or in connection with all the evidence in the case, raises a reasonable doubt in the minds of the jury as to the guilt of the accused, he must be acquitted." This is substantially the language used by the supreme court of Illinois in Ackerson v. People, 124 Ill. 563, 16 N.E. 847. In that case the court says: "The law undoubtedly is, where the people have made a prima facie case, and the defendant relies on the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such degree of certainty, as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of his guilt of the crime charged. Hoge v. People, 117 Ill. 44, 6 N.E. 796; Hopps v. People, 31 Ill. 392, and authorities supra." The instruction given by the court below, and sustained by the supreme court, in that case, was as follows: "The court instructs the jury, as a matter of law, that where the people make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense; and as to an alibi and all other like defenses that tend merely to cast a reasonable doubt on the case made by the people, when the proof is in, then the primary question is (the whole evidence being considered, both that given for the defendant and for the people), is the defendant guilty beyond a reasonable doubt?--the law being that when the jury have considered all the evidence, as well that touching the question of alibi as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, then they shall acquit; otherwise not." It will be observed that the instructions in the case at bar follow very closely the language of the court in that case. In fact, the instructions as to the case of the prosecution being "such a case as would sustain a verdict of guilty," and as to the burden of proof, are identically the same. This case is cited with approval in Carlton v. People, 150 Ill. 181, 37 N.E. 244.

This question was also very fully considered by the supreme court of Missouri in a homicide case (State v. Howell, 100 Mo. 628, 14 S.W. 4); and that court quotes with approval Whart. Cr. Ev. (8th Ed.) § 333. The part material to the question we are now considering reads as follows "Undoubtedly, if the prosecution makes out a case sufficient to secure a verdict of conviction, then the burden is on the defendant to prove his defense. But, when his proof is in, then the final question is, are the essential averments of the indictment proved beyond a reasonable doubt? And among these essential averments is the defendant's participation in the act charged." And that court adds that "the supreme courts of Indiana, Iowa, and Texas, in well-considered cases, have also approved and announced, in express terms, the same doctrine," citing Howard v. State, 50 Ind. 190; State v. Hardin, 46 Iowa, 623; Walker v. State, 42 Tex. 360. It will be noticed that Mr. Wharton uses the expression "then the burden is on the defendant...