46 N.E. 31 (Ind. 1897), 18,125, Reynolds v. The State

Docket Nº:18,125
Citation:46 N.E. 31, 147 Ind. 3
Opinion Judge:Monks, J.
Party Name:Reynolds v. The State
Attorney:Reynolds & Sills, and J. C. Herron, for appellant. W. A. Ketcham, Attorney-General, B. F. Harness, J. C. Blacklidge and C. C. Shirley, for State.
Case Date:February 04, 1897
Court:Supreme Court of Indiana
 
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Page 31

46 N.E. 31 (Ind. 1897)

147 Ind. 3

Reynolds

v.

The State

No. 18,125

Supreme Court of Indiana

February 4, 1897

From the Howard Circuit Court.

Affirmed.

Reynolds & Sills, and J. C. Herron, for appellant.

W. A. Ketcham, Attorney-General, B. F. Harness, J. C. Blacklidge and C. C. Shirley, for State.

OPINION

Page 32

[147 Ind. 4] Monks, J.

The indictment against appellant was in three counts. The first charged appellant and one Hawley with the crime of robbery, under section 1987, Burns' R. S. 1894 (1914, R. S. 1881). The second and third counts charged the offense of assault and battery with intent to commit the crime of robbery, under section 1982, Burns' R. S. 1894 (1909, R. S. 1881). There was a separate trial of appellant by jury, and a verdict of guilty returned as charged in the first count of the indictment, and over a motion for a new trial, judgment was rendered upon the verdict.

The only error assigned and not waived calls in question the action of the court in overruling the motion for a new trial.

The first cause assigned for a new trial is misconduct of counsel for the State in his opening statement to the jury.

[147 Ind. 5] It appears from the record that Frederick Hawley, who was jointly indicted with appellant, testified as a witness on behalf of appellant.

Counsel for the State, in his opening statement, anticipating the defense of alibi, said in substance, that if Hawley testified as a witness the State would show, as affecting his credibility as a witness, that after he was arrested he said that he was at home with his father and mother on the night when the crime charged was committed; that he lied about his whereabouts immediately after his arrest, and that, after the falsity of his statement was made apparent, he called to his aid, by means of a written communication, one of the most disreputable prostitutes of the town to induce her to swear that he had slept with her all that night, and therefore could not have been present. Counsel objected to this statement for the reason that what Hawley said was after the offense was committed, and not in the presence of appellant; that the State has no right to anticipate what Hawley will testify to as a witness, and can only state to the jury what the prosecution expects to prove in the first instance, that is, in chief, and not what the State may expect to prove if this witness or that witness testifies, by way of rebuttal or impeachment.

Counsel for the State also said: "I think the jury understand me, that my statement is not testimony; I don't claim it as testimony. I certainly have the right to say what our answer will be to Hawley, and it is due to the defense for us to tell what our answer will be to him in the event that he should make the claim on the witness stand, as we understand he made to the officer when he was arrested."

The court overruled said objection, and admonished the jury that the statements by the counsel for the State should not in any wise affect the defendant; that [147 Ind. 6] such evidence, if it becomes admissible, would only go to the credibility of Hawley, if he testified in the case. Counsel for appellant thereupon moved the court that the case be withdrawn from the further consideration of the jury and that the jury be discharged, which motion the court overruled.

While the State is not required in an opening statement to anticipate the defense of alibi, or any other defense, yet the appellant had no grounds to complain because the opening statement to the jury advised him, in advance, of evidence the State expected to give in rebuttal or by a cross-examination of his witness.

Hawley testified as a witness, and his testimony and other evidence in the case strongly tended to support the statement to which objection was made. Even if such statements had not been sustained by the evidence, appellant would not be entitled to have the verdict set aside for that reason. The jury had been informed that the statement was not evidence, and we must ascribe to jurors ordinary intelligence.

Under the facts shown by the record the statement was not such as would justify a reversal under the rule established in this State, even though no evidence were subsequently given to sustain the same. Livingston v...

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