Todd v. State, 28697

• Citation: 229 Ind. 664, 101 N.E.2d 45
• Case Date: October 04, 1951
• Court: Supreme Court of Indiana

Page 45

101 N.E.2d 45

229 Ind. 664

TODD v. STATE.

No. 28697.

Supreme Court of Indiana.

Oct. 4, 1951.

Ernest E. Owens, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., George W. Hand, Deputy, James M. Lewis Pros. Atty. 40th Judicial Circuit, Brownstown, for appellee.

EMMERT, Judge.

Appellant, by a jury, was found guilty of automobile banditry and sentenced to a term of 14 years in the state prison. The affidavit in part charged appellant 'did unlawfully, feloniously, fraudulently and knowingly utter, publish and pass, indorse and deliver to one Byron Judd, then and there being as true and genuine a certain false, forged and counterfeit check for the payment of money, towit: Fifty-Eight Dollars and Sixty Cents ($58.60)' and that he 'did have on or near the premises where such forgery, as aforesaid, was so committed * * * a motor vehicle * * * by the use of which * * * the said Ralph D. Todd * * * did escape and intend to escape.' The second count of the affidavit charged the commission of the same forgery but did not charge automobile banditry.

The appeal from this judgment presents an issue involving double jeopardy similar to that decided in Slack v. Grigsby, Ind.Sup.1951, 97 N.E.2d 145. In Todd v. State, 1948, 226 Ind. 496, 81 N.E.2d 530, 784, 82 N.E.2d 407, by a divided court it was held that appellant's first conviction on the same affidavit should be affirmed. Thereafter appellant filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Indiana, South Bend Division, and on September 26, 1949, that court decided that appellant had been denied due process of law under the Fourteenth Amendment, and that the original judgment of conviction was void. Todd v. Dowd, 100 F.Supp. 485. The state then filed what it designated a motion to reinstate the original cause and set the same for trial for the reason that the original verdict and judgment had been declared null and void by said District Court. This brought to the attention of the trial court the fact that the original judgment had been adjudged void.

The proper procedure would have been for the state to have moved to vacate of record the judgment for the reason that it had been adjudged void, and to order a new trial. The proceedings had subsequent to the time due process was denied were void in fact, because the United States District Court had jurisdiction to decide and did so decide such issue by virtue of the superior force of the Fourteenth Amendment. The decision of the United States District Court was brought to the attention of the trial court, which record then disclosed the nullity of all acts taken after the loss of jurisdiction.

This left the issues made by the original affidavit and the plea of not guilty ready for a retrial. The appellant, having successfully sought to have his original sentence adjudged void, cannot assert he has been placed in double jeopardy by a retrial. In Slack v. Grigsby, Ind.Sup.1951, 97 N.E.2d 145, 148, supra, this court held that after the United States District Court had adjudged the sentence for murder in the first degree void because a plea of guilty had been entered after the prisoner had been denied his right to counsel under the due process clause of the Fourteenth Amendment, the prisoner was 'not put in jeopardy by a judgment of conviction which is void for lack of jurisdiction.' In this case the opinion reviewed the authorities, and quoted with approval the language in Mitchell v. Youell, 4 Cir., 1942, 130 F.2d 880, 882, as follows: "The defense of prior jeopardy will not protect him, for in holding that the trial was a nullity, we hold that he has not been in jeopardy under the charge. It is settled that an accused is not put in jeopardy by a void judgment of conviction, and that upon his discharge thereunder he may be again arrested and prosecuted." In State v. Mead, 1837, 4 Blackf. 309, this court held a defendant could be tried again on the same indictment for larceny where there had been no legal trial because the state had been denied its constitutional right to trial of the cause by jury. The opinion by Blackford, J., said 'Our constitution, it is true, provides that no person shall be twice put in jeopardy for the same offense. Ind.Const. art. 1, sec. 13 [1816 Constitution]. But that provision does not apply to a case where the first trial was a nullity, and where the defendant, of course, was not put in jeopardy by it.

'There has been a mis-trial, and though the defendant has been acquitted, there must be another trial of the cause.'

Appellant contends there was reversible error in the trial court giving to the jury the state's requested instruction No. 1, which is as follows: 'The affidavit in this case charges the defendant with two criminal offenses and it is divided into two counts; but if the evidence satisfies you, beyond a reasonable doubt, that the defendant is guilty of either of these offenses, then you should return a verdict of guilty against him as that is all the law requires. The law gives the state the right to charge the defendant with both of these alleged offenses in one affidavit, but it only requires it to establish sufficiently one or more of them to entitle it to be a verdict of guilty at your hands.' Appellant's specific objection was directed to the words 'to establish sufficiently' as providing a standard not in compliance with the requirement that the guilt of the defendant must be established beyond a reasonable doubt. However, the first part of the instruction did require proof beyond a reasonable doubt, and the instruction is to be construed as an entirety. 'In many cases in this jurisdiction it has been held that an instruction is to be construed as an entirety and is not to be judged by detached clauses or sentences.' Campbell v. State, 1925, 197 Ind. 112, 118, 149 N.E. 903, 905. The instruction is not good in form, but we do not feel that it told the jury they could find the appellant guilty on evidence which failed to establish guilt beyond a reasonable doubt.

State's requested instruction No. 7 which was also given to the jury also presents the question of the trial court's departure from the requirement that the evidence must prove the accused guilty beyond a reasonable doubt before conviction. This instruction stated: 'An accomplice is one, who with criminal intent, acts with others and participates in the commission of a crime. Under the laws of the State of Indiana, an accomplice is competent as a witness for the state in a trial of a criminal case. The evidence of the accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other witness. It is the duty of the court and the jury to carefully scrutinize the testimony of an accomplice; and, if her testimony should be found sufficiently satisfactory to the jury, they may return a verdict of guilty on her testimony alone.'

In Adams v. State, 1923, 194 Ind. 512, 518, 519, 141 N.E. 460, 462, this court held such an instruction was not erroneous on the theory that the jury had been instructed fully on the subject of reasonable doubt and that the instructions were to be construed as a whole and the jury must have understood the objectionable clause 'to mean that, if his testimony shall be found to establish the guilt of the defendant beyond a reasonable doubt, they may return a verdict of guilty on his testimony alone.'

This court does follow the general rule that instructions in criminal causes are to be considered as a whole. Bredenderf v. State, 1923, 193 Ind. 675, 141 N.E. 610; Sims v. State, 1925, 197 Ind. 311, 147 N.E. 520; Slaughter v. State, 1936, 209 Ind. 658, 199 N.E. 244; Arthur v. State, 1949, 227 Ind. 493, 86 N.E.2d 698. But since the decision in the Adams case, supra, this court has materially narrowed the application of the general rule. In Flick v. State, 1935, 207 Ind. 473, 477, 193 N.E. 603, 605, this court said: 'An erroneous instruction is not corrected by giving a correct one, unless the improper one is withdrawn. Conflicting instructions confuse the jury, and it is impossible to determine which instruction they followed.' In the same year this court, in discussing the problem, in an opinion by Chief Justice Fansler, said: 'It is error to give an instruction which incorrectly states the law. Definitions fixing a high standard in one case and a lower standard in another are not conducive to equal justice. Cases cannot be affirmed in the face of admittedly erroneous instructions, which, if correctly understood by the jury, permit conviction upon evidence of lessor weight than contemplated by law, since it cannot be said that a correct instruction would not have resulted in a different verdict. Justice requires that the guilt of all defendants shall be determined by the same standard. It is true that the statute provides that, 'in consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant.' Section 2394, Burns' 1926 [ § 9-2320, Burns' 1933, § 2384, Baldwin's 1934]. This statute must be construed as having preference [reference] only to matters of practice and procedure, and to questions which do not go to the merits of the case. It was not intended to authorize this court to weigh the evidence and determine therefrom whether the jury would have reached the same verdict under proper instruction. A defendant is entitled to have the jury correctly instructed concerning the law. Any expression in the decisions which would seem to indicate that this court will consider the evidence in determining whether an erroneous instruction, involving the merits of the case, prejudiced the substantial rights of the...