State v. Whitely , 100 Utah 14 ( 1941 )

The defendant, Austin Whitely, is charged with having committed the crime of burglary in the second degree. Whitely waived a jury trial and stated, through counsel, the desire to have the cause tried by the court. A hearing was had and the defendant was found guilty of burglary in the second degree. An appeal brings the matter to this court.

It is admitted that someone committed a burglary in Farmington on the night of November 30, 1938. The identity of the presumed burglar is the only issue in the case. A man was seen coming from the house which had been burglarized about 7:15 P.M. on the evening carrying something under his arms; Deputy Sheriff Oviatt had been lying in wait and had inspected a car standing near the scene of the burglary which was thought to be the car of one who had been committing frequent burglaries in that vicinity; the tread of the tires, the radio antenna, the make of the car and the interior were noted. The deputy encountered the presumed burglar and the burglar in turn dropped some of the articles he was carrying and pulled a gun on the officer. The hat of the burglar was turned down to cover his eyes; the evening was dark; the nearest light, high on the street corner, was some 230 or 240 feet away. The officer was within nine or ten feet of the burglar when Oviatt was ordered to drop his spot light. The burglar moved in a semicircle around the officer keeping some ten feet distant from him all the time. The burglar fled, the officer opened fire on him, the burglar jumped into the standing car and drove away.

In making the report of the happenings, the deputy sheriff described the man some three inches shorter than the accused actually is and as being "short and thin", when he is actually tall, five foot eleven inches. Oviatt did not notice the license number on the car during his inspection or whether or not the car was a coach or sedan model. After having talked with Salt Lake officers about the record of the accused and having seen pictures of him the deputy sheriff identified Whitely as the burglar at a show up. The model of the car reported in the officer's report after the burglary was changed after an inspection had been made of Whitely's car.

Whitely denied having been in Farmington on the night of the burglary. He denied the burglary. Evidence was introduced that Whitely had been in Salt Lake during the whole of the afternoon of November 30th, aiding Mrs. Lyman Cromer, his sister, in making a purchase of an automobile. The automobile salesman testified that Whitely had been with them during the afternoon and up until about five o'clock. A son of Mrs. Cromer said that Whitely was at home when he came from school at about five in the evening. Shortly thereafter Mrs. Cromer left with Mrs. Ann Jones for a ride and Whitely was at home when they left. Mrs. Jones took Mrs. Cromer out to Sugar House with her to pick up her husband who works at Petty Motor Company. He was supposed to get off at six o'clock but was late leaving. The three of them then drove Mrs. Cromer home and when they stopped in front of the Cromer residence Mrs. Jones saw Whitely coming out of a neighborhood lunch stand.

Mr. Lyman Cromer testified that when he returned home from work Whitely was home and that Whitely advised him that his wife had purchased the "pink car." Mr. Cromer testified that he remained home about half an hour and went to visit neighbors and play cards. Whitely advised Mrs. Cromer that her husband had left in a huff. Mrs. Cromer told Whitely to go to the neighbors and tell her husband that she would forfeit her down payment on the car if he thought it was not a good deal. Whitely went to the neighbors and told Mr. Cromer what his wife had said and returned to the Cromer residence. Shortly thereafter Mr. Cromer returned home and he and his wife began a quarrel about the "pink car." The son suggested that he and Whitely go to a show and get away from the quarrel. They went to see "Alexander's Ragtime Band."

The next day Mrs. Cromer received delivery of the car and went to the bank to get the money out of the safe-deposit box. While she was in getting the money, the auto salesman and her son heard the newsboys start crying about the terrible school bus accident that happened in Salt Lake County that morning, December 1.

Mr. and Mrs. Cromer fixed the time Whitely was with them by his being with them the night and day the "pink car" was purchased, which caused such a family furor. The salesman fixed the day as the one he was paid for the car which was the one following the day he had been with Whitely and Mrs. Cromer making the deal. Mrs. Jones fixed the night she saw Whitely as she and her husband were in a hurry to get to the P.T.A. meeting to be held in the Irving School and they were barely able to get there by seven thirty and they did not stop to cook dinner. The son fixed the night as the one he and Whitely went to see "Alexander's Ragtime Band" when his folks were quarreling about the "pink car."

The findings of fact made by a jury, or the trial court sitting as a jury, when supported by substantial evidence, are final and will not be disturbed by this court. Such findings must be in accordance with the instructions on the law, as given by the court. In this jurisdiction the court is 1-3 not required in a case tried to the court, without a jury, to express what the instructions to the jury would be were the case tried to the jury. However, in the instant case, the court did express what he thought the law to be and made his findings in accordance with such interpretation of the law. He found the defendant guilty.

The court interpreted the law governing the case as follows:

"* * * taking this case, as it stands now, unquestionably the witness the Deputy Sheriff, Mr. Oviatt, is it, — he has positively identified the defendant as the person that was present there at the time he speaks of. He identifes him as the man. Now, the defendant has denied that. Of course, there is that positive proof, and then there is that denial; then, again, I state, there is additional proof, which may be circumstantial in the case, that is, the identification of the automobile; that defendant is found with an automobile that is quite similar to the automobile that Mr. Oviatt admits, or as it is described as being parked there that evening. That would be a circumstance to be considered in connection with his positive denial. * * * I am going to hold in this case, that there has been a prima facie case made, and, that there is in the alibi no such an alibi that would accountfor all of the time; and I am going to hold that the burden ofproof is on the defendant to establish that alibi, by competent evidence, and not on the State. In view of that holding, I am going to find the defendant guilty as charged in the information.

* * * "I am basing my decision entirely on the burden of proof and alibi; in other words, if the State had to carry the burden ofproof as against this alibi, and to show that the alibi was not true, I am in doubt if the evidence would be sufficient. I am not taking into consideration the defendant has a criminal record. I am giving full credit to that, except he has admitted denial that has been corroborated to some extent by the identification of the automobile. If I didn't have this opinion, I would probablyrender a different opinion in this case."

Chapter 120, Laws Utah 1935, has been construed by this court, and in construing the act the court stated: 4

"The defense of alibi has always been considered a legitimate and proper defense. It frequently happens that is the only defense an accused has. That it might lend itself to fraud and perjury was recognized by our Legislature. This does not say however, that chapter 120, Laws of Utah 1935, was intended as a disparagement of the defense and places a defendant invoking such defense under a handicap as to the quantum of proof necessary to convict, that would not otherwise be the case had he not invoked such defense. Its purpose clearly is to erect safeguards against the wrongful use of the defense of alibi and give the prosecution time and information to investigate the merits of such defense. With such safeguards the natural effect would be to give greater weight, not less, to an alibi which such investigation has failed to refute." State v. Waid, 92 Utah 297, 67 P.2d 647, 651.

There is no expression of an intention, either implied or expressed, on the part of the Legislature, to shift the burden of proof from the State to the defendant. As stated, the purpose of the statute

"clearly is to erect safeguards against the wrongful use of the defense of alibi and give the prosecution time and information to investigate the merits of such defense."

The trial court in the instant case stated that

"if the State had to carry the burden of proof as against this alibi, and to show that the alibi was not true, I am in doubt if the evidence would be sufficient."

The state, in all cases where the presence of the accused is necessary to render him responsible, must prove that he was there as part of its case; and if from all 5 the evidence there exists a reasonable doubt of his presence, he should be acquitted.

"The so-called ``defense of alibi' is a defense only in the sense that any contradiction of facts which the government must prove to establish guilt may be called 6, 7 a ``defense.' The burden of proving guilt must always rest upon the prosecutor. * * *

"To charge that a defendant has the burden of establishing an alibi is plainly erroneous, for the burden of proving guilt never shifts from the government. Glover v. United States, [8 Cir.] 147 F. 426, 431, 8 Ann. Cas. 1184; Falgout v. United States, [5 Cir.] 279 F. 513, 515; Cangelosi v. United States, [6 Cir.] 19 F.2d 923." United States v. Vigorito, [2 Cir.]67 F.2d 329, 330, certiorari denied Vigorito v. United States,290 U.S. 705, 54 S. Ct. 373, 78 L. Ed. 606.

In one of the earliest cases in the Utah reports, this court is reported as having stated:

"In no criminal case is the burden of proof ever shifted from the prosecution to the defense. It rests upon the prosecution throughout the entire trial, and the rule of a reasonable doubt applies in every such case." People v. Tracy, 1 Utah 343.

In the case of State v. Waid, supra, this court found it reversible error and the basis for the granting of a new trial when the trial court charged the jury that "if it ``found from a preponderance of the evidence that the offense charged was committed under substantially the considerations detailed by the witnesses of the State,'" they should find the accused guilty.

There is a divergence of view on the question of the burden imposed on a defendant interposing the defense of alibi. See 22 Corpus Juris Secundum, Criminal Law, § 574, p. 887. We think the better reasoning is found in the rule adopted by this court.

The facts show there was bound to be uncertainty in the officer's identification. There was a change in the matter of identification of the automobile to harmonize with later information. This reduces the identification largely to a matter of opinion. Then it is strange that the automobile license number plate should not have been noted — one of the best means of tracing identification. The time elapsed between the alleged offense and identification was from November 30th to March 17th.

In the instant case, the statements made by the court were matters of law upon which, if given to a 8 jury, the court would base its reversal and order a new trial, as such instruction would have been erroneous.

The case is reversed and the cause remanded for a new trial in accordance with the views expressed in this opinion.

LARSON, McDONOUGH, and PRATT, JJ., concur.