Alder v. State

• Decision Date: 19 December 1958
• Docket Number: No. 29711,29711
• Citation: 154 N.E.2d 716,239 Ind. 68
• Parties: Milburn Eugene ALDER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 716

154 N.E.2d 716

239 Ind. 68

Milburn Eugene ALDER, Appellant, v. STATE of Indiana, Appellee.

No. 29711.

Supreme Court of Indiana.

Dec. 19, 1958.

John D. Clouse, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Merl M. Wall, Asst. Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit with the crime of involuntary manslaughter under Acts 1941, ch. 148, § 2, p. 447, being § 10-3405, Burns' 1956 Replacement, tried by jury, and found guilty of reckless homicide. From a judgment assessing a fine in the sum of $1 and imprisonment in the Indiana State Prison for a period of not less than 1 nor more than 5 years, this appeal is prosecuted.

Of the questions raised and discussed by appellant in the argument section of his brief pursuant to Rule 2-17 of this court, only two need be considered.

First: Appellant asserts that the trial court erred in giving to the jury on its own motion, over his objection, court's Instruction No. 12, as follows:

'The defendant in this case has testified in his own behalf. He is an interested witness, and you have the right to consider his interest in weighing his testimony the same as you would consider the interest of any other witness having a like degree of interest in the outcome of this case.'

This court has repeatedly held that:

'When a defendant testifies in a criminal case in his own behalf, his testimony must be considered as the testimony of any other witness and weighed in the same manner, and it is error to direct the jury to consider or weigh his testimony in any other manner. Kell v. State, 1924, 194 Ind. 374, 142 N.E. 865.' Scheerer v. State, 1925, 197 Ind. 155, at page 160, 149 N.E. 892, at page 894. See also Kell v. State, 1924, 194 Ind. 374, 379-380, 142 N.E 865; Metzger v. State, 1938, 214 Ind. 113, 115-116, 13 N.E.2d 519.

An instruction reciting in latter part that 'the jury is to take the fact [that he is the defendant] into consideration, and if, on so doing, the jury is satisfied that his testimony is true, they may give it all the weight due to the testimony of any other witness' was before this court in Hartford v. State, 1884, 96 Ind. 461, at page 467, it is said:

'The latter part of the instruction, in any event must be held erroneous. The jury were informed that, if they were satisfied that the appellant's testimony was true, they might give it all the credit due to the testimony of any other witness. If the jury were satisfied that his evidence was true, it was their duty to believe and act upon it without reference to other testimony. In such case it would not be merely entitled to the weight due the testimony of any other witness, but would be entitled to full belief, though contradicted by the evidence of other witnesses.' (Our italics.)

In Bird v. State, 1886, 107 Ind. 154, 8 N.E. 14, it was held to be reversible error to give an instruction which singled out and tended to discredit the testimony of the defendant-appellant. See also Swanson v. State, 1944, 222 Ind. 217, 218, 220, 52 N.E.2d 616; Felix v. State, 1946, 224 Ind. 308, 66 N.E.2d 894; McIntosh v. State, 1898, 151 Ind. 251, 51 N.E. 354.

Appellee contends that the court's Instruction No. 12 was properly given, when measured by the rule as stated in Bohan v. State, 1924, 194 Ind. 227, at page 239, 141 N.E. 323, at page 328, as follows:

'Whether an instruction in a criminal case is erroneous as invading the province of the jury is to be tested by the question whether the court intimates its opinion as to the credibility of witnesses or weight to be given the testimony. If the court did intimate or express such opinion it is error.'

In our opinion the last sentence of such instruction singles out the testimony of the defendant-appellant herein, and indicates to the jury that in the opinion of the court he is likely to testify falsely in order to gain his freedom.

We do not follow appellee in its interpretation of the meaning and effect of such instruction when it states that by it 'The jury is instructed to consider the defendant's interest as they would consider the interest of any other witness.' (Our emphasis). The instruction continues and, as will be noted, closes with the words, 'having a like degree of interest in the outcome of this case.' These last words pinpoint and single out the defendant-appellant. Who else in the case, but the defendant-appellant, could have a like degree of interest in its outcome? This instruction differs materially from that which instructed the jury to consider the defendant's testimony and 'apply to it the same standards by which they would judge the credibility of other witnesses that have testified' and which was approved in Adams v. State, 1924, 194 Ind. 512, 520, 141 N.E. 460, 463. (Overruled on another point by Todd v. State, 1951, 229 Ind. 664, 672, 101 N.E.2d 45).

An instruction which told the jury that "you should consider the interest of defendant in the result of the case" was held in Scheerer v. State, supra, 1925, 197 Ind. 155, 160, 149 N.E. 892, to discredit the testimony of the defendant. In our opinion the effect of the court's Instruction No. 12 herein is the same.

'The statute makes the evidence of the accused competent in his own behalf; and when he goes upon the witness stand, he has a right to put his evidence before the jury unprejudiced by any adverse criticism by the court.' Bird v. State, supra, 1886, 107 Ind. 154, 157, 8 N.E. 14, 15.

When a defendant takes the stand to testify in his own behalf, he is before the court as a witness and should be treated by both the court and the jury in the same manner as are other witnesses.

Appellee has failed to distinguish the instruction here in question from those of similar nature which have consistently been held prejudicial by this court, and we see no reason why we should now change the rule which has been followed over a period of many years.

For the reasons above stated, it was error for the trial court to give its Instruction No. 12.

Second: Because it is likely to occur on a retrial of the case, we also consider the question raised concerning the testimony of the physician who treated appellant in the hospital immediately following the accident.

While appellant was lying unconscious in the hospital a physician, who was at the time 'on call' took a blood sample from appellant in order to determine the type of his blood preparatory to giving him a blood transfusion. A State Police officer who was present at the time requested the physician to take a sample of appellant's blood for him for the purpose of making an alcoholic test. After the physician had drawn about fifteen cubic centimeters of blood he instructed a nurse who was present and assisting him, to give one-half of it to the hospital laboratory technician and one-half to the State Police officer. The blood sample given to the police officer was then put in a special type bottle furnished by him and mailed by him to the State Police laboratory in Indianapolis.

The State called the physician as a witness to show that the blood sample, about which a State Police technician was to testify as to its alcoholic content, had been taken from appellant by the physician.

Appellant asserts that it was error to admit the testimony because the witness was acting as his physician at the time he took the sample of blood, and such transaction between the physician and defendant-appellant was a privileged matter...