Witt v. State
| Decision Date | 18 May 1933 |
| Docket Number | No. 26226.,26226. |
| Citation | 185 N.E. 645,205 Ind. 499 |
| Parties | WITT v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
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.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.
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.
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 if, as appellant urges, the eleventh instruction placed the “burden upon the defendant of proving an affirmative defense” it was erroneous. But we do not so construe the instruction. The statement that an alibi defense “is as proper and legitimate, if proven, as any other defense” could not have been understood as suggesting that the defendant had a legal burden of establishing an affirmative defense. We think the reasonable meaning was to protect the defendant from any possible prejudice of any juror against alibi evidence. This court has disapproved instructions which tended to discredit alibi evidence, and no doubt the trial court was carefully guarding the defendant's interests in the spirit of this court's previous declarations. The language objected to by appellant was followed immediately by the following: “If in view of all the evidence, you have a reasonable doubt as to whether the defendant was in some other place when the crime was committed, you should give the defendant the benefit of that doubt and find him not guilty.” The court also stated that “the defendant is not required to prove the defense beyond a reasonable doubt to entitle him to an acquittal, nor is it required that such evidence should be absolutely clear; but it is sufficient if it raises a reasonable doubt in the minds of the jury, from all the circumstances of the case, whether or not the accused was present at the time and place of commission of the crime charged.” Appellant apparently shared the trial court's view as to “burden,” since in his brief he remarks that “the appellant was not required to offer more proof than enough to establish and create a reasonable doubt on the subject of whether or not he was present at the time of the commission of the crime charged.”
Appellant construes instruction 16 as requiring the jury to “draw the inference that the instructions of the court are the law and that they have no right to disregard the court's instructions.” We approve the instruction which is as follows:
“Under the constitution and statutes of this State, a jury in a criminal case is to determine the law as well as the facts.
“It is made the duty of the Court to instruct you as to the law, and although it is your duty to consider such instructions, you have the right and it is your duty to determine the law for yourselves, although your determination thereof may differ from that of the court.
“You have no right however to disregard the law, but it is your duty to determine it as it actually...
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