Beeler v. State

• Decision Date: 07 April 1952
• Docket Number: No. 28796,28796
• Citation: 104 N.E.2d 744,230 Ind. 444
• Parties: BEELER v. STATE.
• Court: Indiana Supreme Court

Page 744

104 N.E.2d 744

230 Ind. 444

BEELER v. STATE.

No. 28796.

Supreme Court of Indiana.

April 7, 1952.

A. F. Zainey, Clinton H. Givan, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain, Norman J. Beatty, Deputies, for appellee.

JASPER, Judge.

This is an appeal by Robert Beeler, appellant, who, with Roy Jackson and Howard Randall Smith, was charged by amended affidavit with conspiracy to commit a felony, under § 10-1101, Burns' 1942 Replacement. Appellant and his coconspirators entered pleas of not guilty, trial by jury was waived, the trial court found appellant and his coconspirators guilty, and judgment and sentence followed.

Appellant and his coconspirators did not testify, nor did they introduce any evidence.

Appellant makes two principal contentions: (1) That certain evidence was improperly admitted over his objection, and (2) that the decision of the court was not sustained by sufficient evidence and was contrary to law. We shall discuss them in the above order.

A police officer testified to the taking of an extra-judical confession from the co-conspirator, Howard Randall Smith, which confession was State's Exhibit 2. Appellant contends that the confession was erroneously admitted over his objection, the pertinent part of which is as follows:

'Mr. Condit: At this time the State offers to introduce and read in evidence, State's Exhibit #2.

'Cross-Examination by Lorin H. Kiely, Attorney for Defendant Roy Jackson, alias Charlie W. Legg:

'Q. At the time you took the statement from Howard Smith, the defendant Roy Jackson was not present, was he? A. He was not.

'Q. He was not present? A. That is right, Smith was by himself.

'Q. Smith was there by himself? A. Yes.

'Mr. Kiely: Anything bearing as to Roy Jackson would not be competent evidence because the defendant Roy Jackson was not present.

'Mr. Hayes: That would apply to the defendant, Beeler, too.

'Mr. Lockyear: We object to it for the reason that there is no reference in the statement to anything that the defendant is charged with today. There is no connection between the two.

'Court: Objections overruled. It will be admitted as to defendant Smith.'

The ruling of the trial court admitted the confession only as to the defendant Smith; therefore, in substance, sustained the objection as to appellant. He was not harmed by this ruling. After the ruling by the trial court, the witness testified, in substance, that the coconspirator said that appellant, with Roy Jackson and two other men, brought the checks to Howard Randall Smith's home, and the three of them 'drew the checks up. They brought along three other men to pass them.' To this testimony appellant did not object. Neither were objections made to the evidence which was offered and received on the grounds which he now asserts and relies on. Appellant now urges that the testimony of the coconspirator could not be admitted until a prima facie case of conspiracy had been established. See Hamilton v. State, 1933, 205 Ind. 26, 184 N.E. 170, and Kreig v. State, 1934, 206 Ind. 464, 190 N.E. 181. And, further, that the admissions of the coconspirator could not be admitted against appellant after the common design had been fully consummated. These objections as urged by appellant were not made at the time of the admission of the testimony. Objections not made in the trial court cannot be considered on appeal. Kelley v. State, 1948, 226 Ind. 148, 152, 78 N.E.2d 547. In Pulley v. State, 1910, 174 Ind. 542, 544, 545, 92 N.E. 550, 551, this court said: 'The objection made in the court below was not sufficiently specific to present such question. It is well settled that a party who objects to evidence must state the grounds of his objection particularly, and if the evidence is received over his objection he must, on appeal in this court, be confined to such specific objections. He cannot, in this court, successfully urge any other objection, however valid such new objection may be. Musser v. State, (1901), 157 Ind. 423, 430, 431, 61 N.E. 1, and cases cited; Indiana Improvement Co. v. Wagner (1894), 138 Ind. 658, 38 N.E. 49, and cases cited; Stout v. Rayl (1896), 146 Ind. 379, 45 N.E. 515; Bingham v. Walk (1891), 128 Ind. 164, 27 N.E. 483. It follows that, as said objection is made for the first time in this court, it cannot be considered. * * *'

In Humble v. State, 1928, 199 Ind. 653, 655, 160 N.E. 41, this court said: 'A party objecting to the admission of evidence or moving to strike out must state to the trial court the specific grounds of objections and only such objections are available on appeal as were there made and ought to have been sustained.' (Citing cases.)

In Heyverests v. State, 1931, 202 Ind. 359, 362, 363, 174 N.E. 710, 711, this court said: 'A party who objects to the admission of evidence must state or point out to the trial court with reasonable certainty the specific grounds of his objection, and, when such grounds are stated, the implication is that there are not others, or, if others, that they are waived. Howard v. State (1921) 191 Ind. 232, 242, 131 N.E. 403; Bass v. State (1894) 136 Ind. 165, 171 N.E. 124. If the evidence is received over such objection, an appellant cannot, in the court of appeal, urge, for the first time, other or different objections, Musser v. State (1901) 157 Ind. 423, 431, 61 N.E. 1; Shenkenberger v. State (1900) 154 Ind. 630, 636, 57 N.E. 519 (however valid such objection might have been if it had been presented at the proper time to the trial court, Pulley v. State [1910] 174 Ind. 542, 544, 92 N.E. 550), but the question raised must be determined by the record as made in the trial court, and the only objections to evidence available on appeal as causes for reversal are those which were presented to and passed upon by the trial court'. (Citing cases.)

The trial court did not err in admitting the evidence.

Appellant further urges that the following testimony was improperly received over his objection:

'Direct Examination by Hon. Ollie C. Reeves, Judge of Said Court:

'Q. Who brought them to his home? A. He said he knew two of them, Robert Beeler and Roy Jackson.

'Mr. Hayes: To which we object, your honor, and move that be stricken.

'Court: Objection overruled.'

The objection made by appellant is general and states no specific grounds.

In Pocker v. State, 1926, 197 Ind. 599, 600, 601, 150 N.E. 408, 409, this court said: 'Appellant complains of the admission of three different items of evidence given by witnesses in answer to as many questions; but in two instances the record does not show that the defendant or his attorney stated any ground of objection whatever at the time the evidence was admitted, but only recites that, 'counsel for the defendant now objects to the question, which objection is overruled by the court * * *.' And motions to strike out the evidence thus admitted were in the same general terms, without stating any reasons why it should be stricken out. A party objecting to the admission of evidence, or asking that it be struck out, must state to the trial court the specific ground or grounds of objection relied on, and only those objections are available as causes for reversal, on appeal, which were made and ought to have been sustained in the court below. (Citing cases.) No specific objections to this evidence having been made in the trial court, mere general objections are not available as causes for reversing the judgment appealed from.'

It is a well-settled rule of practice that when a question is propounded to a witness the opposite party cannot wait until the question is answered, and then, if unfavorable to him, object and ask that the answer be stricken. Newman v. Newman, 1943, 221 Ind. 432, 48 N.E.2d 455. The objection must be made to the question before it is answered in order to present any question for review. Edmondsen, Rec. v. Friedell, 1928, 200 Ind. 298, 301, 163 N.E. 89; Western & Southern Life Ins. Co. v. Lottes, 1946, 116 Ind.App. 559, 574, 63 N.E.2d 146, 64 N.E.2d 405, 805.

The trial court properly overruled the objection and the motion to strike.

Appellant next urges that the following testimony was improperly admitted:

'Q. I will hand you State's Exhibit #5 and ask you to tell the court whether or not the endorsement of the name Robert Collins on the reverse of that exhibit was made in your opinion by the same person who signed the sheet indicated as the admitted signature of the defendant Beeler?

'Mr. Hayes: To which we are objecting, your honor, the yellow sheets haven't been identified.

'Court: Objection overruled.'

Subsequently, the sheet indicated as the admitted signature of appellant Beeler was properly identified and introduced in evidence, without objection, as State's Exhibit 8. The above testimony having been subsequently connected by the admission of State's Exhibit 8, the trial court did not commit error. Dixon v. State, 1945, 223 Ind. 521, 528, 62 N.E.2d 629. In Eaton v. State, 1917, 186 Ind. 167, 169, 115 N.E....