Binder v. State

• Decision Date: 21 December 1966
• Docket Number: No. 30547,30547
• Citation: 221 N.E.2d 886,248 Ind. 30
• Parties: Joseph BINDER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 886

221 N.E.2d 886

248 Ind. 30

Joseph BINDER, Appellant, v. STATE of Indiana, Appellee.

No. 30547.

Supreme Court of Indiana.

Dec. 21, 1966.

Robert L. Stephan, Harry S. Taylor, South Bend, for appellant.

John J. Dillon, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

The defendant was charged with the crime of sodomy under Acts 1905, ch. 169, § 473, p. 584, being Burns' Ind.Stat.Anno. § 10--4221 (1956 Repl.), and following a jury trial was convicted and sentenced accordingly, from which judgment the defendant below and appellant herein appeals.

There is only one specification in the motion for a new trial presented by appellant's brief on appeal, namely, the overruling of appellant's motion for a psychiatric examination of the State's prosecuting witness, Susanna Lynne Eby, 15 years of age. This question has come before this Court previously and has been settled in Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649. We stated that there is no statute in Indiana requiring the court to order a psychiatric examination of the witness and said:

'The prosecuting witness in this case, being 17 years of age, took the witness stand clothed with the presumption of competency, and the burden of establishing the contrary was on the appellant-defendant.'

In that case the motion for a psychiatric examination was made at the beginning of the trial. It was an attack upon the competency of the witness.

In the case before us, no such motion was made until the conclusion of the State's case and after the witness in question had testified fully and upon cross-examination. Appellant's motion was not timely filed and an objection as to the competency of a witness must be made before the witness is permitted to testify. The objecting party may not wait and hear the testimony and if the evidence is unfavorable, then object to the competency of the witness. Morgan v. State (1962), 243 Ind. 315, 185 N.E.2d 15; Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649.

On the issue of the right to a psychiatric examination in cases involving sex crimes, we have more recently reaffirmed our position taken in the Wedmore case, supra, by the opinion in Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98.

On the authority of the cases cited above, the judgment of the trial court is affirmed.

MYERS and RAKESTRAW, JJ., concur.

JACKSON, J., dissents with opinion.

DISSENT

JACKSON, Judge.

I dissent to the majority opinion.

Appellant was charged by indictment with the crime of sodomy under Acts 1905, ch. 169, § 473, p. 584, § 10--4221, Burns' 1956 Replacement.

The indictment, omitting formal parts, reads as follows:

'The Grand Jurors of the St. Joseph Circuit Court for the May Term, 1963 in and for the County of St. Joseph, State of Indiana, upon their oath do present:

'That on or about the 22nd day of January 1963, at and in the County of St. Joseph, State of Indiana, one JOE BINDER did then and there unlawfully, feloniously commit the abominable and detestable crime against nature with mankind or beast, to-wit: with one Susanna Lynne Eby, a female human being, being then and there of the age of fifteen (15) years, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Appellant tested the sufficiency of the indictment by motion to quash, reasons therefore being,

'1. That it does not state sufficient facts to constitute public offense.

'2. That it does not state the facts as to the said alleged public offense with sufficient certainty.'

June 10, 1963, appellant's Motion to Quash was overruled. Thereafter, on September 10, 1963, appellant appeared in person and by counsel, waived arraignment and entered a plea of 'not guilty' to the indictment. On September 16, 1963, appellant requested and obtained a change of venue from the county, the venue being changed from St. Joseph County to Marshall County.

Trial began on November 14, 1963, by jury in the Marshall Circuit Court. At the conclusion of the State's evidence on November 15, 1963, appellant filed his motion to require the prosecuting witness, Susanna Lynne Eby, to submit to a psychiatric examination, such motion, omitting formal parts and signatures, reads as follows:

'Comes now the defendant, Joseph Binder, by his attorneys, and moves the court to require the complaining witness, Susanne Lynn Eby, to submit to a psychiatric examination for the purpose of determining the following:

'(1) To verify her emotional stability; and

(2) To establish her capacity for truthfulness.'

The court promptly overruled appellant's motion.

Thereupon defendant introduced his evidence, the defendant not taking the stand. After deliberation the jury returned the following verdict:

'We, the Jury, find the defendant, Joseph Binder, guilty; and further find that he should be imprisoned as provided by law, and his age is 50 years.'

On December 18, 1963, the following proceedings were had in said cause, reading as follows:

'Comes now the State of Indiana by Eugene N. Chipman, Prosecuting Attorney for the Marshall Circuit Court and Thomas Roemer, Prosecuting Attorney for the St. Joseph Circuit Court. Comes also the defendant in court in person and by counsel.

'The Jury having heretofore returned the verdict of Guilty in the above entitled cause, and the Probation Officer having filed her pre-sentence report of investigation, (emphasis supplied) and the defendant, having been asked in open court if he has any legal cause or reason to show why judgment should not be pronounced against him upon the verdict of the Jury, and no legal cause or reason being shown,

'IT IS NOW ORDERED AND ADJUDGED by the Court that Joseph Binder, sometimes known as Joe Binder, the said defendant, is guilty of Sodomy, as charged in the indictment; the court finds that the defendant is 63 years of age and for the offense so committed, the defendant is now sentenced to the Indiana State Prison for a term of not less than two years nor more than fourteen years, and that he make his fine to the State of Indiana, in the sum of.$1000.00, and the costs of this action.

'Sheriff is charged with execution of sentence.

'Argument on motion for New Trial Submitted. Motion for New Trial is now overruled.'

Appellant's 'Motion for New Trial' contained six (6) grounds, as follows:

'1. The trial Court erred overruling his Motion to Quash based on insufficiency of the allegations to constitute a public offense.

'2. The trial Court erred in overruling his Motion to Quash the indictment based on alleged uncertainity (sic) of the allegations.

'3. The trial Court erred in overruling his Motion that the Court appoint a psychiatrist to examine Susanne Lynn (sic) Eby, and to testify at the trial as to his findings from such examination.

'4. The trial Court erred in sending the jury back for further deliberation and stated in substance it was apparent that the jury had returned two verdicts; one finding him guilty of a misdemeanor charge, and the other finding him guilty of a felony charge.

'5. That the verdict is not sustained by sufficient evidence.

'6. That the verdict is contrary to law.'

Appellant's 'Assignment of Errors' reads as follows:

'Comes now the Appellant and shows to the Court that the trial Court committed manifest error in the trial of this cause in the following respects, to-wit:

'1. In overruling the Motion to Quash the indictment.

'2. In overruling the Motion for new trial.'

The only witness produced by the State of Indiana was Susanna Lynne Eby. The only evidence adduced by the State came from this witness, consequently that is the evidence most favorable to the State and is set out in rather more detail than otherwise would be customary.

The witness testified that she was fifteen (15) years of age when she met appellant about 4:30 o'clock on the morning of January 20, 1963. That the meeting took place outside the Cadillac Lunch Restaurant where she worked as a part time waitress. That she was introduced to appellant by a friend, Red Felix. She told appellant she was nineteen years of age when they were introduced and he asked her to go home with him, which she did. She got into appellant's car with the owner of the restaurant, Mr. Felix, and Mr. Binder. The owner of the restaurant was let out at his home, and the others went to appellant's home on Lincolnway West in South Bend, arriving about 5:00 o'clock a.m. on January 20, 1963.

After arrival at appellant's home he asked her if she knew what a 'call girl' was, she replied 'yes', and he then asked her if she would work for him as one and she said 'yes'. She was then asked if she would do a 'trick' with another man, who was present at appellant's home, and who was called Stanley. The word 'trick' meaning in the words of the witness, '(i)t is a slang expression would we have intercourse (sexual) with them for pay'. Her answer was 'yes', and she and Stanley went into the bedroom in appellant's home where they had sexual intercourse for which Stanley paid her $25.00, of which sum she gave appellant $12.50 keeping the remainder herself. After completing the trick with Stanley the witness went back to a place where she had been staying on St. Peter Street in South Bend, Indiana.

She returned to appellant's house at 1043 Lincolnway West again on the night of January 21st and '(t)hat night, I turned two of his tricks for Mr. Binder. * * * I stayed there that night and all the next day and I was still there the next night.' In the early morning of January 23rd, when she and appellant were in appellant's kitchen alone they had a conversation about which the witness testified as follows: 'Mr. Binder was telling me some of the things that his call girls do.' In response to a question by the State she replied '(h)e told me there was a thing called a French job and explained to me what it was, and he called himself a teacher and would teach me how to do this...