Witt v. State, No. 26226.

Docket NºNo. 26226.
Citation185 N.E. 645, 205 Ind. 499
Case DateMay 18, 1933
CourtSupreme Court of Indiana

205 Ind. 499
185 N.E. 645

WITT
v.
STATE.

No. 26226.

Supreme Court of Indiana.

May 18, 1933.


Appeal from Boone Circuit Court; John W. Hornaday, Judge.

Charles Vernon Witt was convicted of murder in the first degree while engaged in an attempt to rob, and he appeals.

Affirmed.

[185 N.E. 646]


Rogers & Smith, of Lebanon, and Holmes, Ermston & Holmes, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Sp. Asst. Atty. Gen., for the State.


TREANOR, Chief Justice.

Appellant was tried and convicted upon an indictment which charged the commission of murder in the first degree “while engaged in an attempt to perpetrate the crime of robbery.” The case was tried in the Boone circuit court on a change of venue from Marion county.

The grounds urged for reversal are (1) that the trial court erred in overruling appellant's motion for a new trial; and (2) that the trial court erred in assuming jurisdiction over the person of the appellant and over the subject-matter of the indictment.

To support the point that the trial court was without jurisdiction of person and subject-matter, the appellant “relies upon the record as shown by the transcript from the Criminal Court of Marion County to the Boone Circuit Court.” The substance of appellant's position may be stated as follows:

(1) The issuance of a warrant is the act which confers jurisdiction over the subject-matter and person of a defendant.

(2) The record shows “that no warrant was issued for his (appellant's) arrest and the Court cannot assume that his appearance was voluntary.”

We do not agree with appellant's contention that the trial court lacked jurisdiction, but we cannot discuss the merits of this contention, since the record affords no basis for the statement that no warrant was issued. Under “Pleas and Proceedings, had in the Boone Circuit Court,” this entry is set out: “Be it remembered, that on the 8th day of July, 1931, the following transcript together with all papers on change of venue from Marion Criminal Court was filed in the office of the Clerk of the Boone Circuit Court, as follows, to wit.” The foregoing is followed by a recital of the proceedings in the Marion county criminal court connected with the return of the indictment and the motion for a change of venue from Marion county. The record does not expressly cite that a warrant was issued, nor does it list individually and by title “all papers” which were transmitted with the transcript. It is clear, however, that the record does not show, as contended by appellant, that no warrant was issued for his arrest. The most that can be said in that respect is that it does not show by express recital that a warrant was issued. Since on appeal there is a presumption of regularity in the proceedings below, we must presume that the usual and regular procedure of issuing a warrant was followed. Nichols v. State (1891) 127 Ind. 406, 413, 26 N. E. 839;Davidson v. State (1893) 135 Ind. 254, 267, 34 N. E. 972; Brown on Jurisdiction (2d Ed.) § 20a, p. 103. See, also, Hollibaugh v. Hehn (1905) 13 Wyo. 269, 79 P. 1044;State v. Fitzgerald, 51 Minn. 534, 53 N. W. 799. We conclude that the record does not show the trial court's lack of jurisdiction of either subject-matter or person of appellant.

Of appellant's causes for a new trial only the first, fourth, fifth, and sixth are presented on appeal. The first cause, that the verdict of the jury is contrary to law, is supported only by the alleged lack of jurisdiction, and we have already disposed of that proposition. Discussion of causes 4, 5, and 6 is limited to the following alleged errors of the trial court:

(4) Errors of law in refusing to give instructions numbered 4, 15, 17, 18, 21, 23, 24, 25, 28, 32, 35, 36, 37, 38, 39, 41, and 45.

(5) Errors of law in giving instructions numbered 7, 11, 16, and 18 on the court's own motion.

(6) Errors of law in giving instructions numbered 1, 2, 3, and 4 tendered by the state of Indiana.

We find no basis for objection to the instructions given by the court. In our opinion, instructions 7, 11 (as supplemented by instruction 12), and 16 stated accurately and correctly the law on reasonable doubt, alibi, and the proper function of the jury in the matter of determining the law of the case.

[185 N.E. 647]

Appellant urges that the statement in instruction 11 that “such a defense (i. e. alibi) is as proper and legitimate, if proven, as any other defense and all evidence bearing upon that point is for the consideration of the jury” has the effect of placing the “burden upon the defendant of proving an affirmative defense.” Strictly speaking, alibi evidence is merely rebuttal evidence directed to that part of the state's evidence which tends to identify the defendant as the person who committed the alleged crime. And in a sense an alibi is adequately covered by a general instruction which declares that the state must prove beyond a reasonable doubt all the essential elements of the offense charged. If a defendant attempts merely to rebut the state's identity evidence by testimony which directly discredits such evidence, there is no suggestion of an affirmative defense; but, when the defendant takes the initiative and, disregarding the state's identity evidence, attempts to set up an independent state of facts inconsistent with the defendant's presence at the time and place of the commission of the alleged crime, this phase of his case is essentially an affirmative defense in form, character, and appeal to the jury. A defendant, however, by resorting to an alibi defense, does not relieve the state of the burden of identifying him, beyond a reasonable doubt, as the perpetrator of the alleged offense. And...

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27 practice notes
  • Hamilton v. State, No. 26358.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 1934
    ...be indulged in favor of the jurisdiction, rulings, and regularity of the proceedings of the trial court. Witt v. State (Ind. Sup. 1933) 185 N. E. 645. Any alleged disqualification of any juror who served at the trial of this cause is also not cognizable under the ninth statutory cause for a......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...of four shots and when he returned, Bright was dead. In Hamilton v. State, (1934) 207 Ind. 97, 190 N.E. 870, and Witt v. State, (1933) 205 Ind. 499, 185 N.E. 645, we affirmed the convictions of Hamilton and Witt for murder in the perpetration of a robbery. Again, both defendants were senten......
  • Barker v. State, No. 29554
    • United States
    • Indiana Supreme Court of Indiana
    • May 22, 1958
    ...legislation (since repealed) have caused some confusion in the understanding of the earlier decisions of this court. Witt v. State, 1933, 205 Ind. 499, 185 NE. 645; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. [238 Ind. 275] The decisions must be read in the light of the statu......
  • State v. El-Tabech, EL-TABEC
    • United States
    • Supreme Court of Nebraska
    • May 15, 1987
    ...to that part of the state's evidence which tends to identify the defendant as the person who committed the alleged crime." Witt v. State, 205 Ind. 499, 503, 185 N.E. 645, 647 (1933). (Emphasis added.) Though Rule 12.1 of the Hawaii Rules of Penal Procedure requires the Page 594 defendant to......
  • Request a trial to view additional results
27 cases
  • Hamilton v. State, No. 26358.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 1934
    ...be indulged in favor of the jurisdiction, rulings, and regularity of the proceedings of the trial court. Witt v. State (Ind. Sup. 1933) 185 N. E. 645. Any alleged disqualification of any juror who served at the trial of this cause is also not cognizable under the ninth statutory cause for a......
  • Brewer v. State, No. 678
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1981
    ...of four shots and when he returned, Bright was dead. In Hamilton v. State, (1934) 207 Ind. 97, 190 N.E. 870, and Witt v. State, (1933) 205 Ind. 499, 185 N.E. 645, we affirmed the convictions of Hamilton and Witt for murder in the perpetration of a robbery. Again, both defendants were senten......
  • Barker v. State, No. 29554
    • United States
    • Indiana Supreme Court of Indiana
    • May 22, 1958
    ...legislation (since repealed) have caused some confusion in the understanding of the earlier decisions of this court. Witt v. State, 1933, 205 Ind. 499, 185 NE. 645; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. [238 Ind. 275] The decisions must be read in the light of the statu......
  • State v. El-Tabech, EL-TABEC
    • United States
    • Supreme Court of Nebraska
    • May 15, 1987
    ...to that part of the state's evidence which tends to identify the defendant as the person who committed the alleged crime." Witt v. State, 205 Ind. 499, 503, 185 N.E. 645, 647 (1933). (Emphasis added.) Though Rule 12.1 of the Hawaii Rules of Penal Procedure requires the Page 594 defendant to......
  • Request a trial to view additional results

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