Woods v. State, No. 29092

Docket NºNo. 29092
Citation233 Ind. 320, 119 N.E.2d 558
Case DateMay 20, 1954
CourtSupreme Court of Indiana

Page 558

119 N.E.2d 558
233 Ind. 320
WOODS

v.
STATE.
No. 29092.
Supreme Court of Indiana.
May 20, 1954.

[233 Ind. 321]

Page 559

Wilbur F. Dassel, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling and Richard M. Given, Deputy Attys. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment sentencing appellant to the Indiana State Prison for life, after a jury had found him guilty of rape of a female child under the age of twelve years. The error assigned is the overruling of his motion for a new trial.

The court in its preliminary instructions to the jury under Rule 1-7A read the affidavit. Preliminary Instruction No. 1 in part stated:

'To this affidavit, the defendant has been arraigned in open court, and has entered his plea of not guilty, and has filed his notice of alibi.

'Upon the issues thus joined, the burden is upon the State of Indiana to establish the material averments of the affidavit by the evidence to the exclusion of every reasonable doubt.'

By preliminary Instruction No. 3, the court told the jury that the burden of proving every material allegation beyond all reasonable doubt was upon the State and the burden never shifted to the defendant. 1 Appellant insists that he was prejudiced because the court did not read in full his notice of alibi filed pursuant[233 Ind. 322] to Ch. 228 of the 1935 Acts, §§ 9-1631 to 9-1633, Burns' 1942 Replacement. Rule 1-7A requires the court to instruct the jury in writing 'as to the

Page 560

issues for trial, the burden of proof, the credibility of witnesses, and the manner of weighing the testimony to be received.' Admittedly the instruction as to alibi was not as full and complete as it might have been, but in our opinion Ch. 228 of the 1935 Acts does not make the motion of alibi a pleading in the cause. Under § 9-1132, Burns' 1942 Replacement, appellant could have specially pleaded the defense of alibi, but when he did not, as was the case here, the defense was, as a matter of law, in issue under a plea of not guilty. 2 Chapter 228 of the 1935 Acts does not provide as to the manner of making of issues, but it does establish rules for both the accused and the State as to the introduction of evidence concerning an alibi. See Pearman v. State, 1954, Ind.Sup., 117 N.E.2d 362. We find no error in the court's preliminary instructions under Rule 1-7A.

There was no motion for a separation of the jury, and the jury did separate at the noon intermission and at the conclusion of each day of the trial. However, when they returned to the court house they were in a room behind the court room. Appellant's special bill of exceptions No. 1 fails to contain any diagram of the court room and the rooms connected with and under the jurisdiction of the court, and we are not able to determine whether the alleged misconduct[233 Ind. 323] of the jury occurred in the regular jury room or in another room which was used as a waiting room by the jury after it had been duly sworn and impaneled to try the cause. In this special bill of exceptions we find the testimony of the two court bailiffs who had charge of the jury and the testimony of counsel for appellant. None of this testimony was contradicted, nor did the State introduce any evidence in rebuttal. From this testimony it is made to appear that police officers who were witnesses for the State, and the sheriff, who had been active in attempting to solve the crime, were visiting with members of the jury in the room where the jury gathered during intermissions and recesses. When the trial judge was on the bench, counsel for appellant in open court requested one bailiff to stop the witnesses from visiting with the jury. The next day the visiting continued, and counsel for appellant duly moved for a mistrial, which, after a hearing, was overruled by the court. It was not made to appear that any of the conversations had anything to do with the evidence in the cause, yet such conduct cannot escape our condemnation even though the witnesses may have made no attempt to discuss the cause. If the appellant during intermissions had been permitted to go in the jury room and visit and fraternize with members of the jury, the State could properly have moved to declare a mistrial. The jury should determine the credibility of witnesses and the weight to be given their testimony from the evidence given upon the trial, and it would be all too easy for the jury unconsciously to be influenced as to these matters by a friendly association with the witnesses for the State.

Canon 23 of the Canons of Professional Ethics adopted by the American Bar Association states the correct rule for the attorney's conduct toward a jury as follows:

[233 Ind. 324] 'All attempts to curry favor with juries by fawning, flattery or pretended solicitude for their personal comfort are unprofessional. Suggestions of counsel, looking to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the Court out of the jury's hearing. A lawyer must never converse privately with...

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51 practice notes
  • State v. Troupe, No. 14882
    • United States
    • Supreme Court of Connecticut
    • June 11, 1996
    ...v. Hall, 88 Idaho 117, 397 P.2d 261 (1964); People v. Lawler, 142 Ill.2d 548, 154 Ill.Dec. 674, 568 N.E.2d 895 (1991); Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1954); State v. Ladehoff, 255 Iowa 659, 122 N.W.2d 829 (1963); State v. Hoskinson, 78 Kan. 183, 96 P. 138 (1908); Cook v. Comm......
  • Jenkins v. State, No. 107
    • United States
    • Court of Appeals of Maryland
    • June 12, 2003
    ...vacate the decision of the Court of Appeals, reverse the trial court and remand for a new trial." Id. at 142. See also Woods v. State, 233 Ind. 320, 324, 119 N.E.2d 558, 561 (1954)(where the Supreme Court of Indiana held that the police officers'/state's witnesses' conduct in visiting with ......
  • Com. v. Bailey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 7, 1976
    ...she made complaint that such an outrage had been perpetrated upon her, and to receive in answer only a simple yes or no.' Woods v. State, 233 Ind. 320, 326, 119 N.E.2d 558, 562 (1954), quoting from Thompson v. State, 38 Ind. 39, 40 (1871). It may be doubted whether so perfunctory a referenc......
  • O'Coin's, Inc. v. Treasurer of Worcester County
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 19, 1972
    ...204 Ind. 390, 395, 184 N.E. 535; Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 511--512, 29 N.E.2d 405; Woods v. State, 233 Ind. 320, 324--325, n. 3, 119 N.E.2d 558; Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 178--187, 125 N.E.2d 709; Castle v. State, 237 Ind......
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51 cases
  • State v. Troupe, No. 14882
    • United States
    • Supreme Court of Connecticut
    • June 11, 1996
    ...v. Hall, 88 Idaho 117, 397 P.2d 261 (1964); People v. Lawler, 142 Ill.2d 548, 154 Ill.Dec. 674, 568 N.E.2d 895 (1991); Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1954); State v. Ladehoff, 255 Iowa 659, 122 N.W.2d 829 (1963); State v. Hoskinson, 78 Kan. 183, 96 P. 138 (1908); Cook v. Comm......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...Idaho 117, 128, 397 P.2d 261 (1964); People v. Robinson, 73 Ill.2d 192, 199-200, 22 Ill.Dec. 688, 383 N.E.2d 164 (1978); Woods v. Indiana, 233 Ind. 320, 326, 119 N.E.2d 558 (1954); State v. Grady, 183 N.W.2d 707, 718 (Iowa 1971); Cook v. Commonwealth, 351 S.W.2d 187, 189 (Ky.1961); State v.......
  • Jenkins v. State, No. 107
    • United States
    • Court of Appeals of Maryland
    • June 12, 2003
    ...vacate the decision of the Court of Appeals, reverse the trial court and remand for a new trial." Id. at 142. See also Woods v. State, 233 Ind. 320, 324, 119 N.E.2d 558, 561 (1954)(where the Supreme Court of Indiana held that the police officers'/state's witnesses' conduct in visiting with ......
  • Ramirez v. State, No. 45S05–1305–CR–331.
    • United States
    • Indiana Supreme Court of Indiana
    • April 29, 2014
    ...We have referred to such conduct as “prima facie prejudicial.” We first used that phrase to describe jury taint in Woods v. State, 233 Ind. 320, 324, 119 N.E.2d 558, 561 (1954), where three state witnesses—two police officers and the sheriff—repeatedly visited jury members in a room where t......
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