Whitehouse v. State

• Court: Indiana Supreme Court
• Writing for the Court: PRENTICE; GIVAN
• Citation: Whitehouse v. State, 266 Ind. 527, 364 N.E.2d 1015 (Ind. 1977)
• Decision Date: 21 July 1977
• Docket Number: No. 376,376
• Parties: David Eugene WHITEHOUSE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 68.

Page 1015

364 N.E.2d 1015

266 Ind. 527

David Eugene WHITEHOUSE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 376 S 68.

Supreme Court of Indiana.

July 21, 1977.

John D. Clouse, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of murder in the first degree and was sentenced to life imprisonment. He appealed the judgment to this Court, and the case had been fully briefed and was awaiting consideration when he died. Proof of death has been filed, and the issue before us is the proper disposition to make of the case under these circumstances. Counsel for the defendant has moved for remand to the trial court with instructions to dismiss the charges. The State urges us simply to dismiss the appeal.

In the past, under like circumstances, this Court has simply dismissed the appeal, as moot. Blackwell v. State, (1916) 185 Ind. 227, 113 N.E. 723; Neville v. State, (1962) 243 Ind. 28, 181 N.E.2d 638; Raymond v. State, (1965) 246 Ind. 422, 206 N.E.2d 139; Rogers v. State, (1973) 156 Ind.App. 180, 295 N.E.2d 840. It is the position of counsel for the appellant that such action is not contra to the authority, including what appears to be the established rule in the federal courts, holding that the entire action abates ab initio, and he urges us to so hold in this case to clarify the Indiana law. Durham v. United States, (1971) 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 and cases there cited.

In addition to the foregoing cited authority, counsel asserts that the defendant has a right of appeal by virtue of Ind.Code 35-1-47-1, the due process clause of the Constitution of the United States and Article I, Section 12 of the Constitution of Indiana, and that all of the proceedings had in the prosecution from its inception should abate, because such appeal rights have been frustrated.

We do not see that the dismissal of the appeal, without more, denies any rights granted or protected by the statutes or the constitutional provisions. Such rights were personal to and exclusively those of the defendant. Although a criminal conviction carries a definite "fall-out" that extends beyond the person of the defendant, we are aware of no right to be free of such, even if such conviction be erroneous. I may no more appeal my brother's conviction than I may enter his guilty plea.

The determination of a disposition to be made of proceedings cast into limbo by the death of the defendant-appellant appears, to us, to be one of policy only. It has been the policy of this Court to dismiss such appeals, not out of compassion for the memory of the appellants or for those persons whose interests may have been adversely affected by the fall-out. As stated in Raymond v. State, supra, and cases there cited, if the judgment of the trial court were affirmed, it would, nevertheless be impossible of execution. If it were reversed, the defendant would not be available for trial. It...