Burke v. State
| Citation | 250 Ind. 568,14 Ind.Dec. 555,238 N.E.2d 1 |
| Decision Date | 24 June 1968 |
| Docket Number | No. 867S62,867S62 |
| Parties | Samuel BURKE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Work & Kimbrough, Gary, for appellant.
John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.
Appellant was charged by affidavit with the crime of rape, waived arraignment and trial by jury and entered a plea of not guilty. At the conclusion of the State's evidence appellant moved for a directed verdict. The court reserved ruling on the motion. Appellant submitted evidence. The State submitted additional evidence, and both parties rested. Arguments were heard on appellant's motion for directed verdict and on the evidence presented. Thereafter the court found appellant guilty as charged. From such finding and judgment thereon stems this appeal.
The affidavit, in pertinent part, reads as follows:
'* * * on or about the 8th day of October, A.D. 1965, at and in the County of LAKE, and State of Indiana, SAMUEL BURK did then and there unlawfully touch one JEAN DEAR, a woman, in a rude and insolent manner, and her, the said JEAN DEAR, he, the said SAMUEL BURKE, did then and there unlawfully, feloniously, forcibly and against her will revish and carnally know, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
The finding and judgment of the court, in pertinent part, reads as follows:
'And the Court, having heard the evidence and being now fully advised in the premises, finds that the defendant is guilty as charged and that he is thirty seven years of age; that he be sentenced to be committed to the custody and control of the Warden of the Indiana State Prison for a period of not less than two nor more than twenty-one years from this date and that he pay the costs of this prosecution.
It is therefore considered, adjudged and decreed by the Court that the defendant, Samuel Burke, for the offense by him committed to-wit: Rape, be and he is hereby committed to the custody and control of the Warden of the Indiana State Prison for a period of not less than two nor more than twenty one years from this date and pay the costs of this prosecution.
And the Sheriff of this County is charged with the due execution of this judgment.
It is further ordered by the Court that the commitment herein be withheld pending the submission and consideration of the report of the pre-commitment investigation.'
Appellant's Motion For New Trial, omitted heading and formal parts, reads in pertinent part as follows:
'1. That the findings and judgment of the Court are not sustained by sufficient evidence as shown by copy of transcript of testimony filed within and incorporated by reference.
2. That the findings and judgment of the Court are contrary to law.
3. That the Court in its preliminary interrogation of the defendant, Jean Dear (sic), failed to appraise said defendant of the penalties involved in connection with the charge of rape. That the court neglected to appraise Defendant of all the constitutional rights that are his by virtue of the Constitution of the United States of America and by virtue of the Constitution of the State of Indiana.
4. That the Court erred in overruling Defendant's motion for a finding which said motion was duly made at the conclusion of the evidence presented by the State in its case in chief, wherein defendant contended that the State had failed to prove each and every allegation contained and alleged in the Affidavit in the State's case.
5. That the Court erred in overruling its objection to certain testimony of the complaining witness wherein the said complaining witness testified in rebuttal to the fact that she was commonly known as Jean Dear, more specifically as follows:
Q. What, in fact, is your true name?
'By Mr. Work: I object! This is impeaching testimony. Witness testified that her true and correct name is Jean Williams. By this you impeach her credibility. She said her true name is Jean Williams.
By the Court: She may answer.
6. That the Court erred in overruling Defendant's objection to the following question, to-wit:
Q. What was your physical condition on October 8th, 1965?
By Mr. Work: Objection! That calls for a medical conclusion and this witness is unable to state. * * *
By the Court: As a layman, she could testify as to her own physical condition, I think the question is proper.
7. That the Court erred in sustaining the prosecutor's objection to the following question:
Q. When you were living with L. C. Williams, a known pander, and with Anna Sue Watkins, whose (sic) a known prostitute, and you were associating with her. * * *
A. I was not associating with her, I said I knew her!
By Mr. Stanton: I object, your Honor!
By the Court: Sustained.
for the reasons that the objection and the Court's ruling prevented Defendant from even fully stating the question asked of the witness, and for the further reason that said objection did not set forth any basis for the same.
8. That the Court erred in overruling Defendant's objection to the following evidence. The following question, objection, ruling of the Court and answer were given:
By Mr. Stanton: Your Honor, I move again for the admission of State's Exhibit No. 1.
By Mr. Work: May I take this witness on voir dire?
By the Court: Yes, you may.
Q. At the time you gave this gun to Mr. Redina, you unloaded it and gave it to the Property Clerk?
A. Yes, sir.
Q. Who was the Property Clerk?
A. I don't recall.
Q. Now, you turned it over to an unnamed Property Clerk that you don't know, is that right?
A. That's right.
Q. I think you just testified who the Property Clerk was, that you gave it to, you didn't recall?
A. Do you want me to confirm it?
Q. You don't know the name?
A. I don't remember who it was. As a matter of procedure, the Property Clerk takes it in his possession and locks it up.
Q. Is that true, that the only person in charge that has access to this vault is the Property Clerk?
A. At this time, that's true.
Q. You don't know what happened to this evidence from the day you gave it to the Property Clerk until this date here?
A. That's right.
Q. You don't know who gave it to you?
A. Mr. Irwin.
Q. It was sealed and in a manila envelope?
A. Yes, sir.
Q. And you don't know who had it or where it was then?
A. No.
Q. Your Honor, we renew our objection of its inadmissibility.
By Mr. Stanton: Your Honor, this is the same weapon that was used in the crime, same possession.
By the Court: Overruled, the objection. State's Exhibit No. 1 may be admitted into evidence.
9. The Court erred in overruling defendant's objection to the admission of evidence, wherein the following offer, objection and ruling of the Court was had:
By Mr. Stanton:
Q. Officer, I'm going to show you what's been marked for the purpose of identification, State's Exhibit No. 2, and ask you if you have seen this before.
A. Yes, sir.
Q. Where did you see that before?
A. This was given to me by Miss Dear, who at the time stated. * * *
By Mr. Work: I'm objecting, Your Honor! You can't tell what she states.
By the Court: That's right, you can't say what she stated to you.
By Mr. Stanton: When did she give that to you?
A. At the time we were investigating the case, October 9th, 1965.
Q. It would be there approximately on that date?
A. Yes sir.
Q. What did you do with it?
A. We put it in a mailer made especially for sending evidence and sent it to the State Police Laboratory downstate, and then asked for analysis, anything they may find, and we asked specifically about semen stains.
Q. Did you put that in a sealed envelope?
A. Well, this is a mailing tub (sic) that we mail and seal and it goes there and comes back from the State Police Lab.
Q. It came back?
A. Yes.
Q. How did it come back to you?
A. In the same type of container.
Q. Did you open it?
A. Yes.
A. I took it all, with the analysis, to the Prosecuting Attorney's Office at the time we got it back.
Q. Did it come back in this envelope, Officer?
A. Yes, sir.
Q. As far as you know, it's been with the Prosecuting Attorney's Office since that time?
A. Yes Sir.
By Mr. Work: We'll agree to that, as I understand, my agreement was that I would agree to stipulation that Sergeant Keith Young from the Indiana State Police Laboratory examined a scarf and as a result of this examination, certain findings were made. Whatever they are, I'll stipulate to I.D. and reserve the right on continuity, what Mr. Keith Young's testimony was; and that I'll stipulate subsequent to their showing the chain.
The Court: The objection to the stipulation as to the State brings this man from Indianapolis, anything he testified to, Mr. Work would be willing to stipulate.
By Mr. Stanton: Your Honor, my understanding is that Sergeant Young would testify and he would testify that he received in a sealed position and received this in a sealed position, and the results of it was a male semen and placed it in a sealed container and mailed it back to Mr. Hilton.
By the Court: It may be so stipulated, gentlemen.
By Mr. Work: Yes, sir.
By Mr. Stanton: I'll offer this into evidence as State's Exhibit No. 2.
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