Opinion
Rehearing Denied Nov. 4, 1974. Opinion Superseded 325 N.E.2d 173.
Page 679
Sheldon H. Cohan, Gary, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Page 680
HOFFMAN, Chief Judge.
Defendant-appellant Jeffrey W. Loza (Loza) was convicted of an aggravated assault and battery by a jury. Judgment was entered on the verdict and appellant was sentenced for a period of not less than one year nor more than five years. His motion to correct errors was overruled and this appeal followed.
Prior to trial, Loza made to the trial court a verified 'Motion and Petition to Dismiss and for Discharge' alleging the existence of certain facts which would appear to invoke the operation of IC 1971, 35-13-10-1, Ind.Ann.Stat. § 9-2412 (Burns Supp.1974). This motion was overruled by the trial court without a hearing, and Loza was made to stand trial on the charge.
IC 1971, 35-13-10-1, supra, provides as follows:
'Self defense--Defense of family--Defense of others.--No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.'
The question now before this court is whether the trial court denied the defendant any right created by this statute when it denied his verified motion for dismissal or discharge without a showing by the State that he did not act in self-defense, where the motion made a prima facie showing that the defendant had acted in self-defense as defined in the statute.
To resolve this question we must look to the purpose and effect of IC 1971, 35-13-10-1, supra, as intended by our Legislature. In doing so, it is proper for this court to examine the express provisions of the statute, the legislative history of the statute, and any legislative records with respect thereto. State ex rel. Jones v. Johnson Circuit Court (1962), 243 Ind. 7, 181 N.E.2d 857. Because the Indiana courts have not construed this statute, prior constructions of similar statutes by our courts must be given great weight, and persuasive authority from other jurisdictions may be considered. Smith v. Beneficial Fin. Co. (1966), 139 Ind.App. 653, 218 N.E.2d 921 (transfer denied).
However, there have been no cases decided by our courts interpreting any other similar statute, and we remain unaided by any legislative history of this section. Furthermore, our research discloses no interpretations of similar statutes existing in our sister-States. Therefore, the only assistance to be had in determining the intent of our Legislature must come from the express language of the statute itself and the applicable rules of statutory construction.
Arizona and North Dakota currently have similar statutes in effect, but their courts have not yet been called upon to interpret them. See: Arizona Revised Statutes, § 13-1207 (1973 Supp.); North Dakota Century Code, § 12-27-05.1 (1973 Supp.).
Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
The primary objective of the rules of statutory construction is to determine and effectuate the intent of the Legislature. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892; Kirby v. Indiana Employment Security Board (1973), Ind.App., 304 N.E.2d 225, 40 Ind.Dec. 10. When a court undertakes to ascertain and effectuate that intent, it should be guided by the principles that,
'a statute must be reasonably and fairly interpreted so as to give it efficient operation, and to give effect if possible to the expressed intent of the legislature. It should not be wantonly narrowed, limited or emasculated and rendered ineffective, absurd or nugatory. If possible it should be allowed to perform its intended mission as shown by the existing evils intended to be remedied. Balzer v. Waring (1911), 176 Ind. 585, 590, 95 N.E. 257, 48 L.R.A., N.S., 834; Walters v. Bank of America (1937), 9 Cal.2d 46, 52, 69 P.2d 839, 110 A.L.R. 1259, 1264; DeTarr v. State (1906), 37 Ind.App. 323, 327, 76 N.E. 897; Perry Twp. v. Indianapolis Powers&sLight Co. (1946), 224 Ind. 59, 69, 64 N.E.2d 296; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 617, 62 N.E. 492; Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 427, 63 N.E. 849.' State v. Griffin (1948), 226 Ind. 279, at 284, 79 N.E.2d 537, at 540.
Furthermore, the statute here at issue arguably affects our criminal laws. If it is found to do so, it must be remembered that our criminal laws are statutory and any ambiguities in them must be construed most favorably to the accused. Shaw v. State (1965), 247 Ind. 139, 145, 211 N.E.2d 172.
Shaw v. State (1965), 247 Ind. 139, 211 N.E.2d 172, was partially overruled by Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536, insofar as it held that imprisonment in the Indiana State Farm is not sufficient to support a conviction under the Habitual Criminal Act. However, Shaw remains viable authority for the rule of statutory construction for which it is cited herein.
To determine whether the statute here at issue affected the rights of the defendant in the case at bar, it must first be determined if the statute has any effect upon our statutory criminal law. IC 1971, 35--13--10--1 supra, provides that no one shall be placed in 'legal jeopardy of any kind whatsoever' by reason of certain acts.
The term 'jeopardy' was early defined by our Supreme Court in The State v. Nelson (1866), 26 Ind. 366, at 367, as follows:
'(A) party is put in 'jeopardy', danger, hazard, liability to be punished, by the commencement of a prosecution against him.'
Thus, IC 1971, 35-13-10-1, supra, is clearly applicable to criminal prosecutions generally, and consequently to the defendant herein. However, because the question of whether the statute has any applicability to civil cases is not now before the court, the above determination should not be read so as to preclude this possibility.
It is equally clear that the Legislature intended that this statute bar jeopardy altogether in certain instances. This intent is eminently apparent from the Legislature's proscriptive wording of the statute:
'No person in this state shall be placed in legal jeopardy of any kind whatsoever * * *.' (Emphasis supplied.)
Therefore, IC 1971, 35-13-10-1, supra, must have been intended by the Legislature to operate as a bar to criminal prosecution at some point before jeopardy attaches to a criminal defendant who has acted within its scope.
The latest point in the criminal justice process at which the statute was intended to operate as a bar to further action against a defendant can be determined by an examination of cases which have decided when jeopardy attaches to a criminal defendant. In Crim v. State (1973), Ind.App., 294 N.E.2d 822, at 828, 36 Ind.Dec. 132, the court stated:
'It is elementary under both the Indiana and Federal Constitutions and cases that jeopardy attaches when a criminal trial commences before a judge or jury and this point has arrived when a jury has been selected and sworn even though no evidence has been taken.' (Citations omitted.)
Since jeopardy attaches in a jury trial when the jury is sworn, Gullett v. State (1953), 233 Ind. 6, 116 N.E.2d 234; Kelley v. State (1973), Ind.App., 295 N.E.2d 372, 375; and in a trial to the court when the trial has commenced, i. e., when the first witness is sworn, Crim v. State, supra; Haase v. The State (1894), 8 Ind.App. 488, 493, 36 N.E. 54, this statutory bar must arise prior to these events.
Because the statute must be construed as a bar to the prosecution of one who has committed criminal acts in self-defense, it is substantially different from the common-law rules of self-defense, which operate as a factual justification for the crime whose existence is determined by the jury rather than an absolute bar to prosecution. An overview of the common-law rules of self-defense in Indiana is given in Bange v. State (1958), 237 Ind. 422, at 425-426, 146 N.E.2d 811, at 812-813:
'The rule governing the definition of self-defense in Indiana is concisely stated in Myers v. State (1922), 192 Ind. 592, 594, 595, 137 N.E. 547, 548, 24 A.L.R. 1196, as follows:
'In this state, the law of self-defense, as deduced from modern authorities, is: 'That, when a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable." Ewbanks Ind. Criminal Law, Symmes Ed., Vol. 2, § 1395, p. 764.
'Whether or not appellant herein shot and killed the deceased in self-defense was an ultimate fact solely for the determination of the jury from the evidence in this case. Landreth v. State (1930), 201 Ind. 691, 697, 171 N.E. 192, 72 A.L.R. 891; Ellis v. State (1899), 152 Ind. 326, 330, 52 N.E. 82; Buffkin v. State (1914), 182 Ind. 204, 207, 106 N.E. 362; King v. State (1918), 187 Ind. 220, 221, 118 N.E. 809; Myles v. State (1955), 234 Ind. 129, 124 N.E.2d 205, 207, certiorari denied (1955) 349 U.S. 932, 75 S.Ct. 776, 99 L.Ed. 1262.
'The further rule applicable here is stated in Myers v. State, supra (1922), 192 Ind. 592, at 594, 137 N.E. 547, at page 548, 24 A.L.R. 1196, as follows:
'. . . surroundings bearing upon the necessity or apparent necessity, as well as the amount of force necessary to employ to resist an attack, can only be determined from the standpoint of the appellant at the time and under all the existing circumstances, and were all proper matters for the jury alone to consider and weigh in determining whether or not she committed the homicide in the reasonable exercise of the right of self-defense, and its conclusion thereon the record before us will not allow us to disturb.'
'It was the burden of the State to overcome the defense of self-defense by proving the commission of the crime charged beyond a reasonable doubt. * * *.' (Emphasis supplied.)
See also: Schlegel v. State (1958), 238 Ind. 374, 150 N.E.2d 563.
It is apparent that the rule required by IC 1971, 35-13-10-1, supra, is dissimilar in concept and operation from the commonlaw rule and may preclude the operation of the common-law rule in some cases by taking the determination of self-defense from the jury. The statute cannot be said to merely restate the common-law.
Thus, it is evident that the Legislature intended that this statute apply to criminal cases, that it operate as a bar to such actions, and that it state a rule significantly different from the common-law rule. The only remaining question of legislative intent which must be determined to dispose of the case now before the court is in what instances this statutory bar is intended to arise.
The statute states that prosecution for one's acts is barred when the actor is
'protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.' IC 1971, 35-13-10-1, supra.
Based on the foregoing, the Legislature's plain intention is that whenever it is found that a defendant acted within the scope of the above quoted rules a statutory bar to his prosecution arises. However, the ultimate difficulty of placing a construction on this statute arises upon attempting to implement this intention.
This is because the portion of the statute under consideration here requires that conclusions of a very factually sensitive nature be made in order to invoke its protection. For example, it is a question of fact whether a defendant used 'reasonable means necessary', or whether he 'reasonably believed' that another was in imminent danger. As demonstrated above, the common-law rule requires the trier of fact to resolve such questions of fact along with the issue of guilt or innocence during the trial of a defendant. That rule is particularly well suited to issues of self-defense because the factual basis for a claim of self-defense must arise as a part of, and not collateral to, the acts with which the defendant is charged.
However, the rule stated by IC 1971, 35-13-10-1, supra, requires that these determinations be made before the case is submitted to the trier of fact. Therefore, whether or not a bar to prosecution arises upon a claim of self-defense by reason of the statute is a question of law for the court having jurisdiction over the cause.
Inasmuch as the conclusions necessary to the existence of this bar to prosecution as a matter of law arise from the same factual context as the guilt or innocence of the accused, the fact-finding procedures used in determining collateral factual matters such as the voluntariness of a confession or the circumstances surrounding a search are inappropriate here. It is proper for the court to consider the effect of such a construction, and it is an inescapable conclusion that if a pretrial fact-finding hearing on the issue of self-defense were required under this statute, the proof offered at such a hearing would be virtually identical to that which would be presented upon a trial of the cause. To require that the facts be tried before there may be a trial upon them in such cases would be to require an absurd waste of judicial resources. We cannot assume that the Legislature has intended such a result. Moore v. State (1972), 257 Ind. 584, 276 N.E.2d 840; State v. Griffin, supra (1948), 226 Ind. 279, 79 N.E.2d 537.
State ex rel. Bynum v. LaPorte Superior Court, No. 1 (1973), Ind., 291 N.E.2d 355.
A much more rational and efficient operation of the statute is secured through a construction which confines its effect to instances where the trial court statute departed from our common law tradition of law. When so read, the statute operates to bar the prosecution of an accused where, considering all the pleadings and affidavits before the trial court, there is no material issue of fact that the defendant acted in self-defense. Prior to the hearing on the motion the State may file affidavits in opposition or may introduce evidence at the hearing on the motion to show that a material issue of fact exists.
In the case at bar, the defendant's verified motion made a prima facie showing that he had acted in self-defense under the statute. The trial court overruled this motion without any opposition having been presented by the State to show that a material factual issue existed as to his claim of self-defense. This was improper.
The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
LYBROOK, J., concurs.
GARRARD, J., dissents with opinion.
GARRARD, Judge (dissenting).
I must dissent from the position taken by the majority regarding the meaning of IC 1971, 35-13-10-1, Ind.Ann.Stat. § 9-2412 (Burns Supp.1974).
The bill as originally introduced provided as follows:
'A BILL FOR AN ACT to amend IC 1971, 35-5, by adding a chapter concerning self-defense, indemnification and reimbursement.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF INDIANA:
SECTION 1. IC 1971, 35-5, is amended by adding a chapter to be numbered Chapter 6 and to read as follows: Chapter 6. Self-Defense. Section 1. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting by any means necessary, himself, his family, or his real or personal property, or when coming to the aid of another who is in imminent danger of or the victim of aggravated assault, armed robbery, holdup, rape, murder, or any other heinous crime.
Sec. 2. When substantial question or (sic) self defense in such a case shall exist, which needs legal investigation or court action for the full determination of the facts, and the defendant's actions are subsequently found justified under the intent of this section, the state of Indiana shall indemnify or reimburse such defendant for all loss of time, legal fees, court costs, or other expense involved in his defense.
SECTION 2. Whereas an emergency exists for the immediate taking effect of this act, this act shall be in full force and effect from and after its passage.'
Thus, as introduced, the bill was identical to § 29-114 of the Revised Statutes of Nebraska adopted in 1969. The Nebraska statute was declared unconstitutional by the Supreme Court of that state in State v. Goodseal (1971), 186 Neb. 359, 183 N.W.2d 258, handed down January 29, 1971, because of the provision in § 1 permitting the use of 'any means necessary' in self defense, which the Nebraska court concluded was specifically intended to remove the requirement of reasonableness in the force that might be used.
In our legislature, the first section was changed by inserting the word 'reasonable' to modify the means that might be used and by deleting the defense of the actor's real or personal property from the scope of the act. The second section, which in the original proposal and in the Nebraska act then recognized the factual nature of the defense and provided for reimbursement by the state to one ultimately vindicated, was struck in its entirety.
Accordingly, as originally proposed, the statute departed from our common law traditon by eliminating the requirement of reasonableness regarding the force used by an actor in self defense; permitted the use of such force in defense of property; and, while recognizing the issue to be one of fact, provided for reimbursement for the actor's expenses incurred in defending himself. As finally adopted, the act returned substantially to the common law position and eliminated the collateral remedy. It therefore appears to me that the statute, as enacted, is simply a public policy declaration of the right of self defense. As such, it was not intended and should not be construed to require a determination other than that traditionally made by the trier of fact. I believe this is further borne out by the possibilities considered in the majority opinion.
I agree with the long and distinguished line of cases holding that the issue of self defense is peculiarly a question of fact for the jury.
As discussed by the majority, a Jackson v. Denno 1 hearing prior to trial would virtually require litigation of the total case. Thus, neither the state nor the defendant would be spared substantial time or expense in securing a pre-trial ruling. Indeed, increased delay and expense in securing a final determination may be reasonably anticipated.
The alternative offered by the majority is equally unrewarding. It would permit by pretrial application a determination of whether self defense is established as a matter of law. Such a determination perforce requires a finding that the minds of reasonable men would not differ on either the reasonableness of the force used or that the circumstances present permitted defense. Since in such determinations all doubts are resolved against the proponent, to have any opportunity of success the defendant would once again have to present the entire case or suffer defeat through the existence of a disputed issue of material fact.
Statutes should be construed so as to prevent absurdity and hardship, and favor public convenience. State v. Rice (1956), 235 Ind. 423, 134 N.E.2d 219. In the statute before us, this can only be done by recognizing the statute for what its history indicates it to be, simply a formal declaration of the public policy of the state.
However, even under the majority view, I do not believe reversal is called for. The defendant's plea of self defense was fully and fairly presented to the jury. He has suffered no prejudice in this conviction. There is no collateral issue of improper evidence that might prejudice the jury. For that matter, the defendant has the opportunity to have the court pass upon the issue as a matter of law by a motion for judgment on the evidence.
I have also examined the other allegations of error asserted and find no reversible error. I would, accordingly, affirm.