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12/18/75 PEOPLE v. BURDEN

December 18, 1975

PEOPLE
v.
BURDEN



T. G. Kavanagh, C. J. Levin and Fitzgerald, JJ., concurred with T. G. Kavanagh, C. J. Ryan, J., took no part in the decision of this case. Williams, J. (concurring in the result). Lindemer, J. (concurring in the result). Coleman, J., concurred with Lindemer, J.

SYLLABUS BY THE COURT

Opinion by T. G. Kavanagh, C. J.

Levin and Fitzgerald, JJ.

1. -- Instructions to Jury -- Alibi.

An alibi instruction must be given if requested, and, whether requested or not, when an alibi instruction is given it must correctly state the law.

2. -- Alibi -- Reasonable Doubt.

Alibi is not a defense, but merely a rebuttal of the prosecution's evidence: testimony in support of an alibi may fail to establish a substantive defense and yet serve to raise a reasonable doubt as to the guilt of an accused.

3. -- Instructions to Jury -- Alibi.

An instruction on the law of alibi should be given to obviate any confusion over the defendant's burden of proof where the defense of alibi is raised, even though the parties do not request the instruction and even over objection.

4. -- Instructions to Jury -- Alibi.

Failure to give an unrequested alibi instruction is not reversible error where the court gives a proper instruction on the elements of the offense and on the requirement that the prosecution prove each element of the offense beyond a reasonable doubt.

5. -- Instructions to Jury -- Unanimous Verdicts.

A trial court should instruct a jury in a criminal case that their verdict must be unanimous to avoid any confusion with verdicts in civil cases, which need not be unanimous.

6. -- Instructions to Jury -- Unanimous Verdicts -- Poll of Jury.

Failure to specifically instruct the jury that their verdict must be unanimous is not reversible error where defense counsel did not object to the instruction given and specifically declined an offer by the trial court to have the jury polled.

7. Robbery -- Armed Robbery -- Instructions to Jury -- Lesser Included Offenses.

A charge to a jury on the possible verdicts in a trial for armed robbery which included an instruction on the lesser offense of unarmed robbery but which did not include offenses less than unarmed robbery was not reversible error absent a request for instruction on the lesser offenses and absent an objection to the instruction given.

Concurring Opinion

Williams, J.

8. -- Instructions to Jury -- Unanimous Verdicts.

A jury was sufficiently advised of the requirement of a unanimous verdict by an instruction that the defendant is presumed innocent until proven guilty "to the satisfaction of each juror".

9. -- Instructions to Jury -- Unanimous Verdicts.

A defendant received a fair trial although no instruction to the jury was requested or given on the defendant's principal theory of the case or on the requirement of a unanimous verdict where the jury was sufficiently advised of the requirement of a unanimous verdict in another instruction, there was a unanimous verdict of guilty, and defense counsel specifically rejected an invitation to have the jury polled

Concurring Opinion

Coleman and ...


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