Brown v. State

• Decision Date: 28 September 1964
• Docket Number: No. 30534,30534
• Citation: 201 N.E.2d 281,245 Ind. 604
• Parties: Russell W. BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 281

201 N.E.2d 281

245 Ind. 604

Russell W. BROWN, Appellant, v.STATE of Indiana, Appellee.

No. 30534.

Supreme Court of Indiana.

Sept. 28, 1964.

Rice & VanStone, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal by Russell W. Brown, appellant herein, from a judgment of the Vanderburgh Circuit Court, Vanderburgh County, Indiana, convicting him of the crime of murder in the second degree.A trial was held before a jury upon the issues formed by appellant's plea of not guilty to the allegations in the indictment.The jury arrived at a verdict finding appellant guilty as charged.He was sentenced to the Indiana State Prison for the period of his natural life.A motion for new trial was filed and overruled.This appeal followed.

The motion for new trial contained 101 specifications of error which appellant claims are grounds for new trial.The assignment of errors filed in this appeal avers only that the court erred in overruling the motion for new trial.

In the Argument section of his brief, appellant waives most of the grounds alleged as error in the motion for new trial, and relies only upon those grounds hereinafter set forth as having any merit.

He first contends that the trial court erred in overruling his motion for a mistrial.The basis for this is an allegation that one of the jurors in the case engaged in a conversation with two women in the court room, one of whom was a former mother-in-law of the deceased, who was the victim of the murder involved herein.The court heard evidence on this motion.The former mother-in-law testified:

'I don't know any of them [jurors].* * * I haven't talked to anyone, only my daughter that's here.'

She further said that she did not recognize one of them as sitting directly behind her in the court room.One of appellant's attorneys testified:

'I further saw a juror, Robert Branson, seated directly behind the deceased's ex-mother-in-law and while I did not hear a conversation, it appeared to me as though a conversation were being had.* * * I can well say that maybe there was no conversation but it appeared to me as though there was, but there definitely was fraternization.'

Appellant requested the court to call the named juror as a witness, which request was denied.Appellant then made an offer to prove in which he stated that had the juror been permitted to take the witness stand he would have testified that on that particular day he did not report to the jury room, but was seated in the court room behind the former mother-in-law with whom he engaged in conversation or with another woman seated beside her.

Appellant cites Woods v. State(1954), 233 Ind. 320, 119 N.E.2d 558, as authority for reversal.That case involved undisputed evidence that police officers, who were witnesses for the State, visited with the jury members and conversed with them in a room where they gathered at an intermission during the trial.

In the case at bar there was no such undisputed evidence.There was a conflict as to whether the juror was in the court room at all at that particular time, and there was no positive evidence that he was engaged in any conversation with the former mother-in-law.The Woods case is not controlling herein as it is clearly distinguishable on the basis of its facts.No reversible error having been shown by appellant, the trial court's ruling must be held as correct.Schlegel v. State(1958), 238 Ind. 374, 150 N.E.2d 563.

Appellant next contends that the court erred in failing to admonish the jury as to their conduct during recess.He relies upon a mandatory interpretation of Burns'Ind. Stat., Sec. 9-1808, 1956 Replacement, which reads as follows:

'When the jurors are permitted to separate, after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them, on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.'

The record shows that on this particular day during the trial, a recess had been called and the jury had started to leave the court room.Half of them were outside when appellant requested that the jury be instructed according to the terms of the statute, and asked the court to recall the jury for the purpose of such instruction.The Judge overruled the motion to which appellant takes exception.The record clearly shows that the objection and motion were made after the recess was called and the jury was half way out of the court room; therefore, such were not timely made.Failure to make timely objection generally waives the right to object to irregularities affecting the jury.8 West's Indiana Law Encyclopedia, Criminal Law, Ch. 25, Sec. 508, page 562.

However, even if the statute is mandatory, as urged by appellant, he does not show how he was harmed by failure of the court to instruct or admonish the jury as to conduct during recess.The general rule is embraced in 9 West's Indiana Law Encyclopedia, Criminal Law, Ch. 30, Sec. 751, page 242, as follows:

'A conviction will not be reversed for an error or a defect which does not prejudice the substantial rights of the defendant, where the record clearly discloses that the defendant had a fair and impartial trial.'

Nowhere does appellant point out that he did not have a fair and impartial trial because of failure on behalf of the court to instruct the jury according to the terms of the statute.Therefore, even if this failure should be considered as error, it was not prejudicial since there was legal and competent evidence in the record from which the jury could have arrived at its verdict, and it is not made to appear that the technical error complained of may have in any way prejudiced the rights of appellant.This court will disregard technical errors or defects which did not prejudice the substantial rights of a defendant.Wright v. State(1958), 237 Ind. 593, 147 N.E.2d 551.

Appellant argues that he called his wife to testify as a witness.On cross-examination, the State repeatedly, over objections, asked about alleged threats...