Barnes v. State

Citation255 Ind. 674,266 N.E.2d 617
Decision Date08 February 1971
Docket NumberNo. 570S109,570S109
PartiesWilliam L. BARNES, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

This is an appeal from the Marion Criminal Court, Division 2, where appellant was tried before Judge Saul I. Rabb without the intervention of a jury. The appellant was found guilty as charged of the crimes of first degree burglary and sodomy.

Evidence introduced at the trial indicates that on August 10, 1969, at about 2:30 a.m., Mrs. Janet Ballard was awakened when a man put his hands upon her neck and threatened her with a knife and said: 'Don't move and don't scream.' Mrs. Ballard was then advised that her assailant wanted to engage in an act of sexual intercourse with her and also that he wanted her to commit an act of sodomy upon him. Mrs. Ballard was told 'Be quiet' on more than one instance and was also told: 'Don't move the pillow until I heard the door click.' Mrs. Ballard estimated that the whole occurrence lasted about one-half hour and stated that she heard the defendant talking the whole time.

Appellant argues on this appeal that the trial court erred in admitting certain testimony concerning a pair of shoes which was found in the defendant's apartment. The court refused to admit this pair of shoes into evidence but there was testimony concerning them which connected the defendant to the crime. The defendant, however, failed to object to the testimony and thus failed to preserve this issue for review. This Court has reiterated on many occasions that objections not made in the trial court cannot be urged on appeal. Widmer v. Sweeney et al. (1955), 234 Ind. 263, 124 N.E.2d 385; Eiffe v. State (1948), 226 Ind. 57, 77 N.E.2d 750; Meadows v. Thomas (1918), 187 Ind. 216, 118 N.E. 811; Seisler v. Smith et al. (1897), 150 Ind. 88, 46 N.E. 993.

It is next contended that the judgment of the trial court is not sustained by sufficient evidence regarding the identification of the defendant. In this case, the defendant was identified by his voice. This Court has recognized the validity of voice identification in criminal prosecutions. Allison v. State (1960), 240 Ind. 556, 166 N.E.2d 171; Deal v. State (1895), 140 Ind. 354, 39 N.E. 930. See also 29 Am.Jur.2d, Evidence § 368 where it is stated: 'Since an early period, witnesses' testimony of identification of a person by having heard his voice has been regarded as legitimate and competent to establish identity in both criminal and civil cases.'

The defendant was also identified at the time of his arrest by a very distinctive cologne that he was wearing. Additional evidence regarding the identity of the defendant involved a footprint outside the victim's window which was matched by a police officer with a tennis shoe discovered in the defendant's apartment. We accordingly find that there was sufficient identification of the defendant.

Judgment affirmed.

GIVAN and HUNTER, JJ., concur.

DeBRULER, J., concurs in result.

PRENTICE, J., concurs in part--dissents in part.

PRENTICE, Judge (concurring in part, dissenting in part).

I concur with Judge Arterburn in the affirmance of the conviction of first degree burglary, but dissent as to the conviction of sodomy.

I take exception to any conviction or charge under the first portion of the Acts of 1905, ch. 169, § 473, p. 584, (1956 Repl.) Burns' § 10--4221, i.e., 'Whoever commits the abominable and detestable crime against nature with mankind or beast * * * shall be deemed guilty of sodomy, * * *.'

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21 cases
  • Robinson v. State, 2-1072A80
    • United States
    • Court of Appeals of Indiana
    • April 15, 1974
    ...admissible. In none does it appear certain, however, that the conviction rested solely on the voice identification. In Barnes v. State (1971), Ind., 266 N.E.2d 617, it appears that the identifying witness had no prior acquaintance with her attacker but she did hear his voice over a much lon......
  • In re A.P.
    • United States
    • United States State Supreme Court of Vermont
    • October 9, 2020
    ...... then let such acts be enacted as crimes fully defined in clear, unequivocal language." Barnes v. State, 255 Ind. 674, 266 N.E.2d 617, 619 (1971) (Prentice, J., concurring and dissenting). Clearly-defined crimes of nonconsensual sexual touching and indecent exposure are not only possible......
  • Hess v. State
    • United States
    • Supreme Court of Indiana
    • May 22, 1973
    ...might otherwise have been averted. Chustak et al. v. Northern Indiana Public Service Co. (1972), Ind., 288 N.E.2d 149; Barnes v. State (1971), Ind., 266 N.E.2d 617; Wilhoite v. State (1971), Ind., 266 N.E.2d 23; Brown v. State (1970), Ind., 262 N.E.2d DeBRULER, J., concurs. HUNTER, Justice ......
  • Watkins v. State
    • United States
    • Supreme Court of Indiana
    • March 17, 1983
    ...258 Ind. 610, 624, 283 N.E.2d 376, 384; Rennert v. State, (1975) 263 Ind. 274, 278, 329 N.E.2d 595, 598-99; Barnes v. State, (1971) 255 Ind. 674, 675, 266 N.E.2d 617, 618. At the time the witness identified Smith, counsel was asked if he had any objection, and he responded: "Yes, I make obj......
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