Blue v. State

Decision Date21 June 1946
Docket Number28094.
Citation67 N.E.2d 377,224 Ind. 394
PartiesBLUE v. STATE.
CourtIndiana Supreme Court

Appeal from Kosciusko Circuit Court; John A. Sloane Judge.

Eggeman Reed & Cleland, of Fort Wayne, and Seth E. Rowdabaugh, of Warsaw, for appellant.

James A. Emmert, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., amnd Merl M. Wall, Deputy Atty. Gen., for appellee.

YOUNG Judge.

A jury found appellant guilty of assault and battery upon Paul Burgess and fixed a penalty of a thousand dollars fine and six months imprisonment.

It appeared without contradiction that in connection with a strike automobiles were parked bumper to bumper at the entrance to the factory involved, so that it was impossible for persons seeking to enter the factory to do so without climbing over the automobiles. There was testimony that about twenty-five employees were present for the purpose of entering the factory to work, and that the sheriff of the county was there to assure them safe conduct across the picket line.

Burgess was an employee desiring to enter the premises of his employer and was the first to undertake the climb across the line of obstructing cars. With the sheriff immediately behind him, he stepped up on the touching bumpers of two cars and started across. There was not entire unanimity in the testimony of the witnesses, but all testified to facts amounting to the offense charged. The State's witnesses testified in effect that when appellant saw Burgess on the bumpers of the cars he came forward and struck Burgess in the chest and knocked him down. Appellant's witnesses testified in effect that when appellant saw Burgess climbing across the bumpers of the cars he came forward and pushed Burgess back into the arms of the sheriff who was immediately behind Burgess. No witness testified that any serious physical harm was done to Burgess and that is argued by appellant, but he was kept from entering the plant where he was employed as he desired to do. The seriousness of an assault and battery is not always measured by the physical harm done. The purpose of an assault and battery is not always to inflict personal injury. The purpose and effect may be to deprive the victim of freedom of action and conduct, as was the case here, and in such cases the physical damage done does not measure the gravity of the offense.

In his motion for a new trial and in the brief before this court, appellant says that the evidence was insufficient to sustain the verdict. As we have already pointed out there was uncontradicted evidence that appellant struck or pushed Burgess as he attempted to enter the factory for work. Notwithstanding the evidence of striking and pushing, appellant's counsel in their brief in this court argue that no assault and battery was committed, 'unless merely blocking the way against one who was pushed against him can constitute an offense.' If from this we are to understand that counsel believes that where a strike is in progress the strikers in the course of picketing have the right by physical blocking and pushing to prevent other from crossing the line set up by the strikers then we cannot agree with him. The right to strike is the right to cease work and is unquestioned. In connection with the right to strike is the right peacefully to picket the premises of the employer against whom the strike is directed, and in the exercise of the constitutional right of free speech by argument and persuasion peacefully to induce others to join the strikers. But the right to strike and the right to picket do not include the right to block entrances and by force, or threats of force, deny other persons the right to go in or upon their own property or to enter the premises to which they have been invited, expressly or by implication. Carnegie-Illinois Steel Corp. v. United Steelworkers of America, 1946, 353 Pa. 420, 426, 429, 45 A.2d 857.

Appellant, in his brief, says that 'the gravamen of appellant's appeal rests upon the ground that appellant's rights, guaranteed to him by Sections 13 and 15 of Article I of the Constitution of Indiana were invaded.'

Section 13 of Article I of the Indiana Constitution is as follows:

'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.'

Section 15 of the same Article is as follows:

'No person arrested, or confined in jail, shall be treated with unnecessary rigor.'

None of the rights guaranteed by these sections was violated.

However, the appellant also later refers to Section 16 of Article I as giving rights that were denied this appellant. Section 16 is as follows:

'Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.'

Appellant contends that rights under this section have been violated. He contends that the fine is excessive and the penalty is out of proportion to the offense committed. But the fine and imprisonment imposed is within the statute governing the offense charged. That being true, this court cannot interfere on account of its severity. Lodyga & Mantych v. State of Indiana, 1932, 203 Ind. 494, 505, 179 N.E. 542; Cox v. State of Indiana, 1932, 203 Ind. 544, 557, 177 N.E. 898, 181 N.E. 469; McCulley v. State, 1878, 62 Ind. 428; Miller v. State, 1898, 149 Ind. 607, 613, 49 N.E. 894, 40 L.R.A. 109. While fines and penalties should not be excessive, and must be proportioned to the nature of the offense, that does not mean that this court can set aside a conviction and sentence, within the statute, merely because on the record it may seem severe. It is the duty of the trial jury, on finding a defendant guilty of misdemeanor, to fix the penalty within the statute defining the offense. Section 9-1819, Burns' 1933. If the statute under which this charge was laid is constitutional, then the punishment, being within the limits as fixed, is lawful and not contrary to Section 16 of Article I of the Constitution of Indiana. Section 16 is a limitation on the acts of the legislature and not a limitation on the discretion of a jury acting within the framework of a statute.

Miller v. State, supra, 149 Ind. at page 613, 49 N.E. 894, 40 L.R.A. 109. In the case before us the statute is not questioned nor is it claimed that the sentence exceeded the statutory limitations.

Appellant principally urges as grounds for reversal misconduct of the prosecuting attorney in the cross-examination of witnesses and in argument. No objection was made during the course of the trial to the cross-examination referred to and no objection was made to the prosecutor's argument and no motion was made to set aside submission on account of either. Ordinarily failure to object to evidence or misconduct of counsel waives and cures any error in connection therewith. We are asked to ignore this rule and to consider whether there was such misconduct upon the part of the prosecutor and failure upon the part of the judge and appellant's counsel as deprived appellant of his constitutional right to a fair trial.

The misconduct of the prosecutor claimed in connection with the cross-examination of witnesses consisted of questions the answers to which tended to show that the witnesses knew there was a war on, and knew that preventing employees from entering the factory retarded production of war material, but that the witnesses in effect placed their union and the strike ahead of war production. Some of the witnesses for the defendant went so far as to say that they did not care whether production of war material was retarded or not.

In argument to the jury the prosecutor referred with some bitterness to the strike and its effect upon war production and its effect upon the success of our military forces. This argument appears to have been directed not to the question of guilt but to the extent of the penalty. Appellant argues vigorously that the conduct of the prosecutor in the course of cross-examination and in argument deprived him of a fair trial by injecting collateral labor and war issues which prejudiced the court and jury and resulted in a trial not for assault and battery but, quoting from appellant's brief, 'for being a member of a labor union, for being out on strike, for being in a picket line, for endeavoring to prevent other employes from entering the plant where he was employed.' It seems to us that these enumerated collateral issues were inherent in the case and that the case could not have been tried without a disclosure to the jury of the above quoted facts which appellant claims are collateral, and we are not certain that the criticized cross-examination was improper, and if the cross-examination was not improper, arguing the facts elicited by such cross-examination was not improper. It will be borne in mind that by statute the burden of fixing the penalty in this case was upon the jury. The right of a jury to hear evidence in aggravation or mitigation of an offense was discussed in the case of Kistler v. State, 1876 54 Ind. 400, 403, 404. In that case the defendant on trial of the cause offered to prove, in mitigation of punishment, the fact that he had already been in prison for the same offense for a period of eighteen months. The court refused to permit him to make this proof and error in such refusal was alleged in this court. This court pointed out that under the old law when the trial court fixed the penalty it was...

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