Todd v. State

101 N.E.2d 45, 229 Ind. 664, 1951 Ind. LEXIS 200

• Court: Indiana Supreme Court
• Decided: October 4, 1951
• Docket: 28,697
• Status: Published

Opinions

Emmert, J.

Appellant, by a jury, was found guilty of automobile banditry and sentenced to a term of 14 years in the state prison. The affidavit in part charged appellant “did unlawfully, feloniously, fraudulently and knowingly utter, publish and pass, indorse and deliver to one Byron Judd, then and there being as true and genuine a certain false, forged and counterfeit check for the payment of money, towit: Fifty-Eight Dollars and Sixty Cents ($58.60)” and that he “did have on or near the premises where such forgery, as aforesaid, was so committed ... a motor vehicle ... by the use of which . . . the said Ralph D. Todd . . . did escape and intend to escape.” The second count of the affidavit charged the commission of the same forgery but did not charge automobile banditry.

The appeal from this judgment presents an issue involving double jeopardy similar to that decided in Slack v. Grigsby (1951), 229 Ind. 335, 97 N. E. 2d 145. In Todd v. State (1948), 226 Ind. 496, 81 N. E. 2d 530, 81 N. E. 2d 784, by a divided court it was held that appellant’s first conviction on the same affidavit should be affirmed. Thereafter appellant filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Indiana, South Bend Division, and on September 26, 1949, that court decided that appellant had been denied due process of law under the Fourteenth Amendment, and that the original judgment of conviction was void. The state then filed what it designated a motion to reinstate the original cause and set the same for trial for the reason that the original verdict and judgment had been declared null and void by said District Court. This brought to the attention of the trial court the fact that the original judgment had been adjudged void.

The proper procedure would have been for the state to have moved to vacate of record the judgment for the reason that it had been adjudged void, and to order a new trial. The proceedings had subsequent to the time due process was denied were void in fact, because the United States District Court had jurisdiction to decide and did so decide such issue by virtue of the superior force of the Fourteenth Amendment. The decision of the United States District Court was brought to the attention of the trial court, which record then disclosed the nullity of all acts taken after the loss of jurisdiction.

This left the issues made by the original affidavit and the plea of not guilty ready for a retrial. The appellant, having successfully sought to have his original sentence adjudged void, cannot assert he has been placed in double jeopardy by a retrial. In Slack v. Grigsby (1951), 229 Ind. 335, 97 N. E. 2d 145, supra, this court held that after the United States District Court had adjudged the sentence for murder in the first degree void because a plea of guilty had been entered after the prisoner had been denied his right to counsel under the due process clause of the Fourteenth Amendment, the prisoner was “not put in jeopardy by a judgment of conviction which is void for lack of jurisdiction.” In this case the opinion reviewed the authorities, and quoted with approval the language in Mitchell v. Youell (C. C. A. 4th, 1942), 130 F. 2d 880, 882, as follows: “‘The defense of prior jeopardy will not protect him, for in holding that the trial was a nullity, we hold that he has not been in jeopardy under the charge. It is settled that an accused is not put in jeopardy by a void judgment of conviction, and that upon his discharge thereunder he may be again arrested and prosecuted.’ ” In State v. Mead (1837), 4 Blackf. 309, this court held a defendant could be tried again on the same indictment for larceny where there had been no legal trial because the state had been denied its constitutional right to trial of the cause by jury. The opinion by Blackford, J., said, “Our constitution, it is true, provides that no person shall be twice put in jeopardy for the same offense. Ind. Const., art. 1, sec. 13 [1816 Constitution]. But that provision does not apply to a case where the first trial was a nullity, and where the defendant, of course, was not put in jeopardy by it.

“There has been a mis-trial, and though the defendant has been acquitted, there must be another trial of the cause.”

Appellant contends there was reversible error in the trial court giving to the jury the state’s requested instruction No. 1, which is as follows:

“The affidavit in this case charges the defendant with two criminal offenses and it is divided into two counts; but if the evidence satisfies you, beyond a reasonable doubt, that the defendant is guilty of either of these offenses, then you should return a verdict of guilty against him as that is all the law requires. The law gives the state the right to charge the defendant with both of these alleged offenses in one affidavit, but it only requires it to establish sufficiently one or more of them to entitle it to be a verdict of guilty at your hands.”

Appellant’s specific objection was directed to the words “to establish sufficiently” as providing a standard not in compliance with the requirement that the guilt of the defendant must be established beyond a reasonable doubt. However, the first part of the instruction did require proof beyond a reasonable doubt, and the instruction is to be construed as an entirety. “In many cases in this jurisdiction, it has been held that an instruction is to be construed as an entirety and is not to be judged by detached clauses or sentences.” Campbell v. State (1925), 197 Ind. 112, 118, 149 N. E. 903. The instruction is not good in form, but we do not feel that it told the jury they could find the appellant guilty on evidence which failed to establish guilt beyond a reasonable doubt.

State’s requested instruction No. 7 which was also given to the jury also presents the question of the trial court’s departure from the requirement that the evidence must prove the accused guilty beyond a reasonable doubt before conviction. This instruction stated:

“An accomplice is one, who with criminal intent, acts with others and participates in the commission of a crime. Under the laws of the State of Indiana, an accomplice is competent as a witness for the state in a trial of a criminal case. The evidence of the accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other witness. It is the duty of the court and the jury to carefully scrutinize the testimony of an accomplice; and, if her testimony should be found sufficiently satisfactory to the jury, they may return a verdict of guilty on her testimony alone.”

In Adams v. State (1923), 194 Ind. 512, 518, 519, 141 N. E. 460, this court held such an instruction was not erroneous on the theory that the jury had been instructed fully on the subject of reasonable doubt and that the instructions were to be construed as a whole and the jury must have understood the objectionable clause “to mean that if his testimony shall be found to establish the guilt of the defendant beyond a reasonable doubt they may return a verdict of guilty on his testimony alone.”

This court does follow the general rule that instructions in criminal causes are to be considered as a whole. Bredenderf v. State (1923), 193 Ind. 675, 141 N. E. 610; Sims v. State (1925), 197 Ind. 311, 147 N. E. 520; Slaughter v. State (1936), 209 Ind. 658, 199 N. E. 244; Arthur v. State (1949), 227 Ind. 493, 86 N. E. 2d 698. But since the decision in the Adams case, supra, this court has materially narrowed the application of the general rule. In Flick v. State (1935), 207 Ind. 473, 477, 193 N. E. 603, this court said: “An erroneous instruction is not corrected by giving a correct one, unless the improper one is withdrawn. Conflicting instructions confuse the jury, and it is impossible to determine which instruction they followed.” In the same year this court, in discussing the problem, in an opinion by Chief Justice Fansler, said: “It is error to give an instruction which incorrectly states the law. Definitions fixing a high standard in one case and a lower standard in another are not conducive to equal justice. Cases cannot be affirmed in the face of admittedly erroneous instructions, which, if correctly understood by the jury, permit conviction upon evidence of lesser weight than contemplated by law, since it cannot be said that a correct instruction would not have resulted in a different verdict. Justice requires that the guilt of all defendants shall be determined by the same standard. It is true that the statute provides that, ‘in consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant.’ Section 2394, Burns’ 1926, §9-2320, Burns’ 1933, §2384, Baldwin’s 1934. This statute must be construed as having preference [reference] only to matters of practice and procedure, and to questions which do not go to the merits of the case. It was not intended to authorize this court to weigh the evidence and determine therefrom whether the jury would have reached the same verdict under proper instruction. A defendant is entitled to have the jury correctly instructed concerning the law. Any expression in the decisions which would seem to indicate that this court will consider the evidence in determining whether an erroneous instruction, involving the merits of the case, prejudiced the substantial rights of the defendant must be disregarded.” Beneks v. State (1935), 208 Ind. 317, 328, 329, 196 N. E. 73. The rule is now firmly established in Indiana that an erroneous instruction cannot be cured by giving another correct instruction on the same subject matter, but the erroneous instruction must be withdrawn, otherwise its giving is reversible error. O’Neil v. State (1939), 216 Ind. 21, 22 N. E. 2d 825; Brannin v. State (1943), 221 Ind. 123, 46 N. E. 2d 599; Steinbarger v. State (1948), 226 Ind. 598, 82 N. E. 2d 519. State’s instruction No. 7 did not define what was intended by the words “if her testimony should be found sufficiently satisfactory to the jury,” and the jury could easily have had the impression that a conviction would be authorized on the uncorroborated testimony of an accomplice even though such testimony did not convince the jury of appellant’s guilt beyond, a reasonable doubt. The instruction purported to be complete on the subject of accomplices, and its giving to the jury was prejudicial error. Adams v. State (1923), 194 Ind. 512, 141 N. E. 460, supra, insofar as it conflicts with this opinion, is overruled.

It would unduly extend this opinion to recite the evidence given in the cause. It is sufficient to note that the verdict was sustained by sufficient evidence and not contrary to law. Other contentions of error are without merit and need not be discussed.

However, since a new trial will be granted, it is in order to discuss one phase of the evidence which we find in the record but not presented in this appeal. Over objection the state was permitted to introduce evidence that appellant’s wife had given other checks to other persons. None of the persons who cashed the checks testified that payment was refused on any check, nor did any officer of any drawee bank testify to any facts showing the checks to have been forged or fraudulent.

“All the authorities in Indiana and the great weight of authority throughout the country hold that in a prosecution for uttering forged paper it is cornpetent to show that shortly before or shortly after the event charged, the accused uttered similar forged instruments to an extent which makes it improbable that he should have been ignorant of the forgery, as bearing on the intent with which the particular act was done. . . . And many authorities hold that, where a number of like offenses were committed in a like manner, as if by following a novel system, evidence that the accused committed one of such offenses is competent on the question of his identity as the person who committed another for which he is on trial. . . .” Cooper v. State (1923), 193 Ind. 144, 149, 139 N. E. 184. Other similar acts or offenses are also relevant in a charge of issuing a fraudulent check to evidence fraudulent intent, design, scheme and plan. Huffman v. State (1933), 205 Ind. 75, 185 N. E. 131.

But as we read the record here the state failed to show three of the witnesses who testified on receiving other checks from appellant’s wife ever were defrauded or that the checks were forged or drawn in the name of a fictitious maker. “Evidence of other crimes should appear to be substantial, and at least make out a prima facie case before it is admissible. If the evidence of another crime only amounts to a suspicion, it should not be received.” Underhill, Criminal Evidence (4th Ed.), §182, p. 327.¹ The statement contained in Anderson v. State (1941), 218 Ind. 299, 317, 32 N. E. 2d 705, as follows: “From the mere recurrence of similar transactions it may be inferred that they were not accidental or inadvertent but were intended by someone. So when it has first been proved by independent evidence that the accused did the act for the intentional doing of which he may be punished, then the other transactions are admissible in evidence to prove his intent even though his connection with them has not been proved,” is too broad and is specifically disapproved. See Kahn v. State (1914), 182 Ind. 1, 105 N. E. 385.

Judgment reversed with instructions to the trial court to sustain appellant’s motion for a new trial.

Gilkison, J., concurs in result with opinion.

1 “Evidence of a vague and uncertain character, offered for the purpose of showing that defendant has been guilty of similar offenses, should not be admitted under any pretense whatever.” 16 C. J. 592, § 1142.