Azimow v. Stoker

• Decision Date: 05 May 1960
• Docket Number: No. 2,No. 19127,19127,2
• Citation: 131 Ind.App. 195,166 N.E.2d 887
• Parties: Ben AZIMOW, Appellant, v. Floyd STOKER, Appellee
• Court: Indiana Appellate Court

Page 887

166 N.E.2d 887

131 Ind.App. 195

Ben AZIMOW, Appellant, v. Floyd STOKER, Appellee.

No. 19127.

Appellate Court of Indiana, Division No. 2.

May 5, 1960.

Rehearing Denied June 8, 1960.

P. B. O'Neill, John E. Scott, Paul E. Schrenker, William J. Norton, O'Neill, Scott, Schrenker & Norton, Anderson, for appellant.

Reuben H. Berman, Roy Dempsey, Marion, Robert Austin, Samuel Johnson, Johnson & Austin, Anderson, for appellee.

BIERLY, Presiding Justice.

Floyd Stoker, appellee, brought this action in the Madison Circuit Court of Madison County against Ben Azimow, appellant, for damages resulting from an alleged malicious prosecution. The case went to trial before a jury on appellee's amended complaint and an answer in general denial by the appellant. The jury returned a verdict in favor of the appellee and assessed his damages in the sum of $7,500.00 against the appellant. Consistent judgment was rendered by the court of the verdict. rendered by the court on the verdict. was arrested on the 24th day of November, 1954, on a criminal warrant issued and predicated upon an affidavit in two counts, charging him in one count with grand larceny and on a second count with horse stealing.

Appellant was the affiant to said affidavit. Upon the basis of the said criminal warrant appellee was lodged in the Grant County, Indiana, jail for several hours prior to his release on posting a $1,000.00 bail bond. Upon arraignment appellee entered a not guilty plea to both counts. For lack of satisfactory evidence the Prosecuting Attorney of Grant Judicial Circuit of Grant County moved the court to dismiss the charges against the appellee on the 25th day of March, 1955. The court sustained the motion.

Appellant, in the case at bar, filed a timely motion for a new trial, which motion was overruled. Of his specifications in his motion for a new trial, appellant relies on those numbered 2, 3, 5, and 8.

Appellant's Assignment of Errors is in overruling appellant's motion for a new trial.

The specifications which were preserved in the argument as set forth in this motion were as follows '2. Newly discovered evidence, material to the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial. * * *.'

'3. Irregularities in the proceedings of the court and abuse of discretion by the court by which the defendant was prevented from having a fair trial. * * *.'

'5. The verdict of the jury is not sustained by sufficient evidence.'

'8. Errors at law occurring at the trial,' such as the court's remarks and the action by the court in sustaining objections to certain questions propounded by the defendant on cross-examination of the appellant.

We first consider said specification No. 2. Two affidavits concerning the newly discovered evidence were attached to the motion for a new trial, one executed by appellant and the other by his attorney, Paul E. Schrenker. Each of these affidavits alleged matter relative to an asserted conversation between one William Gregory, a witness for appellee at the trial, and the affiants. It is stated in the affidavits that the witness, Gregory, was mistaken in his testimony at the trial in reference to a certain visit made to his home by one Filmore Davis, a member of the Indiana State Police; that should a new trial be granted by the court, Gregory would change his testimony; and that such testimony will affect the result on a new trial. It is also averred in the affidavit of said Paul E. Schrenker that William Gregory refused to make an affidavit as 'it would cause him great trouble.'

It has been held by our Supreme Court that the granting of a new trial on the ground of newly discovered evidence lies within the sound judicial discretion of the trial court; that the nature of the evidence warranting the granting of the motion for a new trial on such ground, the newly discovered evidence, must be: (1) That such evidence must clearly appear sufficient to probably effect a change in the result of the previous trial, (2) That such evidence must appear not merely to be cumulative or impeaching, and (3) It must appear that the failure to produce the evidence at the trial was not due to a lack of reasonable diligence on the part of the defendant. Bowling v. State, 1942, 220 Ind. 497, 44 N.E.2d 171; Bartley v. Chicago & E. I. Ry. Co., 1942, 220 Ind. 354, 41 N.E.2d 805, 807. In Bartley, supra, the court said:

'It is well settled that applications for a new trial on the ground of newly discovered evidence are looked upon with disfavor. * * * Granting such a motion is within the sound discretion of the trial court whose ruling wll not be disturbed except for abuse of such discretion.' (Our emphasis.)

In Matis v. Yelasich, 1956, 126 Ind.App. 287, 292, 132 N.E.2d 728, 730, relative to newly discovered evidence, the court said:

'One who seeks a new trial on the grounds of newly-discovered evidence must first show the use of due diligence by setting out the facts constituting the same so that the trial court, in passing thereon, may determine from all the facts presented whether due diligence was reasonably used.' (Our emphasis.)

In the case at bar, it appears from the affidavits that the alleged evidence on which the appellant requests a new trial is merely an impeachment of a witness of his own testimony given during the previous trial. Neither of the said affidavits was executed by the witness named in said affidavits who supposedly would change his testimony, but said affidavits were executed by persons who had conversed with such witness about his testimony during the previous trial.

The case Sprague v. Sowash, 1952, 122 Ind.App. 519, 106 N.E.2d 471, 473, well states the controlling factors in situations where it is alleged that a witness will change his testimony in a subsequent trial but has not executed an affidavit to that effect. This action involved a controversy relative to the quality of certain chicken feed. The witness had prepared an affidavit but refused to execute it. The content presented in the affidavit was in variance somewhat to the previous testimony of the witness. In its opinion in that case the court said:

'The showing as to the unsigned document is not sufficient to compel the granting of a new trial. An affidavit is required unless a sufficient excuse is shown for the failure to file it. The refusal of the witness to make the affidavit is not a sufficient excuse, as the court, upon application, will compel a witness to make an affidavit as to such facts as are within his knowledge. Rater v. The State, 1875, 49 Ind. 507; Huston v. Vail et al., 1875, 51 Ind. 299; Gardner v. The State ex rel. Stottler, 1884, 94 Ind. 489; Williams v. State, 1923, 193 Ind. 670, 139 N.E. 657. No such application was made in this case.'

The court in the Sprague v. Sowash, supra, case further cites extensive authority to the effect that manifest abuse of judicial discretion by the trial court must be shown before an appeal court may be justified in reversing the trial court upon the ground of newly discovered evidence. In the case at bar, no application had been made to the trial court to require the witness, Gregory, to execute an affidavit containing the purported evidence he would give contrary to his testimony in the original trial. Therefore, for reasons heretofore stated, and in line with the opinion of the court in the Sprague case above, we conclude that appellant has failed to produce a sufficient showing that the trial court abused its judicial discretion in rejecting newly discovered evidence as the ground supporting the motion for a new trial. We, therefore, conclude that no error is shown by the trial court in its ruling denying a motion for a new trial based on the ground of newly discovered evidence.

The third specification under the motion for a new trial and which was argued by the appellant, challenged certain statements made by the trial judge in the course of the trial. In the argument portion of his brief, relative to this specification, appellant has failed to point out a single instance where he objected to the comment of the judge nor has he shown by the record that he objected to the judge's comment. The record reveals the following pertinent reference to the matter:

'Judge: The court is going to help both of you. Mr. Schrenker, your reference to the conditional examination has been irrelevant and immaterial.

'Mr. Schrenker: The court has no right to comment on this. If they thought it objectionable they should have objected to it.'

We are not inclined that a statement such as this constitutes a valid objection. Said statement appears to be nothing more than a passing comment by counsel rather than a stated formal objection to the court's remark, as appellant was authorized to do. If a proper foundation has not been laid presaging an appeal, an appellate tribunal is not empowered to assume the opposite. In cases where the misconduct has been alleged or charged, a motion to withdraw the submission of the cause from the jury has been an elemental condition for a proper presentation of error upon appeal. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629; Lawson v. Cole, 1953, 124 Ind.App. 89, 115 N.E.2d 134; Ostrowski et al. v. Estate of Ostrowski et al., 1955, 126 Ind.App. 413, 131 N.E.2d 345; Higshew v. Kushto, 1956, 126 Ind.App. 584, 131 N.E.2d 652, 133 N.E.2d 76. The rule in regard to alleged misconduct of the trial judge, however, appears to be somewhat more liberal. Wilson v. State 1943, 222 Ind. 63, 51 N.E.2d 848; Rhodes v. State, 1930, 202 Ind. 159, 171 N.E. 301, 172 N.E. 176; Brunker v. Cummins, 1892, 133 Ind. 443, 32 N.E. 732; Aylesworth and Others v. Brown and Another, 1869, 31 Ind. 270; City of Frankfort v. Coleman, 1897, 19 Ind.App. 368, 49 N.E. 474; Kintner v. State ex rel. Ripperdan, 1873, 45 Ind. 175.

We note that the last four cases above mentioned were civil actions; that in each of them exceptions were taken to ...