Bolden v. State

• Decision Date: 06 April 1927
• Docket Number: 25,117
• Citation: 155 N.E. 824,199 Ind. 160
• Parties: Bolden v. State of Indiana
• Court: Indiana Supreme Court

155 N.E. 824

199 Ind. 160

Bolden v. State of Indiana

No. 25,117

Supreme Court of Indiana

April 6, 1927

1. CRIMINAL LAW.---"Opening statement" of counsel intended to advise the jury of facts involved.---The opening statement of counsel in a criminal case is intended to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. p. 163.

2. CRIMINAL LAW.---State cannot impeach accused's character until he offers evidence supporting it or testifies as a witness.---The law of this state invests any person accused of crime with a presumption of good character previous to the time of the commission of the offense, and the state will not be allowed to question such character until the accused has put his character in issue by offering evidence in support of it or until he has testified as a witness. p. 163.

3. WITNESSES.---Defendant may be cross-examined as to specific convictions to impeach his credibility and discredit his testimony.---A defendant who testifies in his own behalf may be questioned on cross-examination as to specific criminal convictions to impeach his credibility and to discredit his testimony. p. 163.

4. CRIMINAL LAW.---To permit prosecutor to attack accused's character by charging commission of other crimes is reversible error.---It is reversible error for the trial court, over objection, to permit the prosecuting attorney to attack the character of the accused by charging the commission of other crimes. p. 164.

5. CRIMINAL LAW.---Presumption as to correcting misconduct of prosecutor in referring to criminal record of accused.---Where the record shows that the trial court refused to instruct the jury to disregard the statements of the prosecuting attorney in his opening statements as to the criminal record of the accused, it will not be presumed on appeal that the court permitted the defendant to rest under the accusations during the entire trial and then told the jury to disregard them (Robb v. State, 144 Ind. 569 distinguished). p. 164.

6. CRIMINAL LAW.---Prosecutor's references to criminal record of accused and prior convictions held prejudicial misconduct requiring reversal.---Prosecuting attorney's references in opening statement to long criminal record of accused and prior convictions for other offenses was prejudicial misconduct requiring the reversal of the judgment of conviction in the absence of an instruction to disregard them, and if such an instruction had been given but not included in the transcript, it was the duty of the state to have the record perfected. p. 164.

From Marion Criminal Court (58,752); James A. Collins, Judge.

Edward Bolden was convicted of second degree murder, and he appeals.

Reversed.

Frank A. Symmes, Garth B. Melson, Earl R. Cox and Donald F. Lafuze for appellant.

Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr. Deputy Attorney-General, for the State.

OPINION

Gemmill, C. J.

The appellant was indicted for murder in the first degree; the indictment alleging that he killed Gilbert Hooks, on April 8, 1925, in Marion county. He was tried by a jury and was found guilty of murder in the second degree. His punishment was fixed at imprisonment in the Indiana State Prison during life. On appeal, he assigns as error that the court erred in overruling his motion for a new trial.

The motion for a new trial contained eight causes, but only one of same is presented for review. The third cause, being the one relied upon for reversal, is as follows: Error of law occurring at the trial in this: The court erred in overruling defendant's motion to set aside the submission of the cause because of misconduct on the part of the prosecuting attorney in making his opening statement to the jury. The part of the statement, made by the assistant prosecuting attorney, to which defendant objected, was as follows: "The evidence will show, gentlemen of the jury, that the defendant has a long criminal record. That on February 3, 1916, he was found guilty of assault and battery and received a fine and served some days for that. September 8, 1919, the same defendant was found guilty of assault and battery and received a fine. April 16, 1920, he was again found guilty of assault and battery and fined. July 21, 1921, he was found guilty of assault and battery and fined. July 21, 1921, he was found guilty of drunk and received a fine and costs. March 17, 1922, he was charged with assault and battery with intent to kill and bound over to the grand jury for further action. May 31, 1922, he was found guilty of blind tiger and fined. August 29, 1922, he was found guilty of drunk and judgment withheld. August 29, 1922, he was found guilty of resisting an arrest. August 29, 1923, he was found guilty of assault and battery. June 4, 1923, he was found guilty of the crime of carrying concealed weapons and judgment withheld. August 4, 1923, he was charged with assault and battery and I do not know what became of that case, continued indefinitely. August 23, 1923, he was found guilty of drunk and fined. August, 1924, he was charged with assault and battery with intent to kill and that was sent to the grand jury."

After stating reasons for objecting, the defendant moved the court to admonish the prosecuting attorney to refrain from such statements, to instruct the jury to disregard said statements and each of them, to set aside the submission of the cause and to discharge the jury in order that the defendant might not be prevented from having a fair and impartial trial. The motion was overruled by the court and exception was taken by the defendant. And no other proceedings were had or action taken in said matter.

The opening statement of counsel is intended to advise the jury concerning the questions of fact involved, so as to prepare...