Underwood v. State, 1-1176A206
Decision Date | 06 September 1977 |
Docket Number | No. 1-1176A206,1-1176A206 |
Citation | 367 N.E.2d 4,174 Ind.App. 199 |
Parties | Ronnie G. UNDERWOOD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
Court | Indiana Appellate Court |
Delson Cox, Jr., Douglas C. Latherbury, Cox & Latherbury, Salem, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Ronnie G. Underwood (Ronnie), appeals to this court following his conviction of theft. Ronnie contends that the trial court erred by giving the jury over his objection State's Final Instruction No. 4 which provided as follows:
(Our emphasis)
An instruction such as was given in the case at bar has been repeatedly condemned. See, Arthur v. State (1949), 227 Ind. 493, 86 N.E.2d 698; Vaughn v. State (1939), 215 Ind. 142, 19 N.E.2d 239; Dedrick v. State (1936), 210 Ind. 259, 2 N.E.2d 409; Abel v. State (1975), Ind.App., 333 N.E.2d 848. As stated in Arthur, supra, at 227 Ind. 497, 86 N.E.2d 700:
(Our emphasis)
Further, we are of the opinion that Ronnie's failure to comply with Ind. Rules of Procedure, Appellate Rule 8.3(A)(7), or his failure to make a specific objection to the rendition of State's Instruction No. 4, does not result in a waiver of the claimed error.
In the case of Winston v. State (1975), Ind.App., 332 N.E.2d 229, at 231, Judge Sullivan noted:
". . . The 'fundamental error' doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that 'the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial.' . . ."
The instruction in the case at bar authorized the jury to convict the defendant upon proof by the State that he was in possession of recently stolen property, absent evidence being presented by the defendant justifying his possession thereof. The effect of the instruction was to squarely place upon the defendant the burden of convincing the jury of his innocence and thereby undermining the fundamental rule of criminal law that the State throughout the course of a criminal trial bears the burden of proving the defendant...
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