Butler v. State

• Decision Date: 19 November 1963
• Docket Number: No. 29966,29966
• Citation: 193 N.E.2d 899,244 Ind. 620
• Parties: John Daniel BUTLER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 899

193 N.E.2d 899

244 Ind. 620

John Daniel BUTLER, Appellant, v. STATE of Indiana, Appellee.

No. 29966.

Supreme Court of Indiana.

Nov. 19, 1963.

Rehearing Denied Jan. 15, 1964.

Howard S. Grimm, Edgar A. Grimm, Auburn, for appellant.

Edwin K. Steers, Atty. Gen., Donald L. Adams, Deputy Atty. Gen., Indianapolis, for appellee.

LANDIS, Justice.

Appellant was charged by affidavit with armed robbery and after a jury trial was found guilty and sentenced to the Indiana State Reformatory for ten years. He appeals from the judgment assigning as error the overruling of his motion for new trial.

Appellant first contends the court erred in overruling his objection to a question and in admitting the answer during the cross-examination of appellant, which was as follows:

'Q. I am going to hand you something you filed in here called a Notice of Alibi. Is that your signature?

'A. Yes, it is.

'Q. And that was prepared by your lawyer, wasn't it?

'A. Yes, it was.

'Q. And before this was prepared what is the fact as to whether or not your lawyer asked you or told you he wanted you to tell him everybody that you saw from the time you left your mother-in-law's house at Newville on the night of January 31, 1959, until maybe 9, 10 or 10:30 that night?

'MR. HOWARD S. GRIMM: Just a minute. Don't answer that until I get an objection here. The defendant wants to object to this question for the reason it is a privileged communication. He has no right to know what he said to his lawyer now on everything.

'THE COURT: Here's an alibi prepared by his lawyer, that this man signed, and the lawyer didn't pick it out of the clear sky. That's not a privileged communication.

'MR. HOWARD S. GRIMM: Show our objection.

'THE COURT: Don't tell me you made up this alibi without talking to your client. It's overruled.

'Q. Will you look at this, please? I ask you if it is any place in there stated that you saw any girls or ladies by the name of Hart in Chaney's Restaurant at Spencerville when you went there for the first time that night?

'A. Had I seen them?'

It is apparent that although the third question above set out was objected to by appellant, and the objection was overruled by the court, before the witness answered a new and different question was asked and the question objected to never was in fact answered. There is therefore no question here presented, for if a litigant desires to preserve any objection to a question asked of a witness, he must show that the question was answered and what the witness' answer was. See: Ray v. State (1954), 233 Ind. 495, 499, 120 N.E.2d 176, 178, 121 N.E.2d 732.

Appellant has made similar contention in regard to following questions, objections, and answers during the further cross-examination of appellant, viz:

'(r) The court erred in overruling the objection of the defendant to the plaintiff following question propounded by the plaintiff during the cross examination of John Daniel Butler, defendant herein, and in admitting the answer thereto in evidence, which question, objection, answer, and the fuling of the court thereon are in the following words:

'Q. Do the names of the Hart girls appear in your Notice of Alibi; that you saw people or girls by the name of Hart in the Chaney Restaurant at Spencerville?

'MR. HOWARD S. GRIMM: Show the further objection for the reason that it is a written instrument and the instrument speaks for itself, and is the best evidence.

'THE COURT: It is overruled. He may answer.

'Q. Who were those girls you said you saw in the restaurant?

'A. That was the Hart sisters.'

It again appears that the question objected to by appellant was never answered and therefore no question of error as to the overruling of the objection is presented.

Appellant in his brief has devoted some argument to the propriety of the remarks of the trial judge above set forth, although he did not object thereto at the time.

As we have many times observed, a party may not sit idly by during the trial of a law suit and make no objections to matters he might consider prejudicial and then be permitted after learning the outcome of the jury's verdict, to raise for the first time questions which, had appellant desired to rely on them, should have been presented at the trial.

Appellant has further contended the court erred in refusing to give appellant's tendered instruction 42 and the last portion of appellant's tendered instruction 41.

Instruction 42 was as follows:

'An alibi is a legitimate and proper defense herein for the defendant and evidence has been submitted to the jury relative thereto. If the jury find, from a consideration of the evidence, that the defendant was not at the alleged place and time where the alleged crime was committed, if any was committed, then the defendant should be acquitted. If the jury have, from a consideration of the evidence, a reasonable doubt as to whether the defendant was at the alleged place when and where the alleged crime was committed, if any was committed, then the defendant should be acquitted.'

As this Court stated in Thompson v. State (1944), 223 Ind. 39, 44, 58 N.E.2d 112, 113, in which an instruction as to alibi was refused:

'If by adding the word 'legitimate' the defendant meant thereby to place special emphasis on this particular defense, the request was improper, while if it did not qualify or emphasize the character of the defense, it was harmless to refuse it. The refusal to give these instructions did not constitute error.'

In this case as in the Thompson case, another instruction on the matter of alibi evidence was given by the court and in our judgment it cured any error in refusing to give instruction 42.

Appellant's instruction 41 as given by the court deleted the portion appearing in parenthesis and was as follows:

'If the evidence introduced on the part of the defendant to prove an alibi when considered with all the other evidence and circumstances in this case is sufficient to raise in your minds a reasonable doubt of the defendant's guilt, he should be acquitted (though such evidence may fail to account for his whereabouts during all the time the offense was probably committed).'

Appellant, however, contends that the words 'though such evidence may fail to account for his whereabouts during all the time the offense was probably committed' appearing at the end of instruction 41 as tendered by appellant, were improperly stricken from the tendered instruction and that the full instruction as tendered should have been given.

Appellant has offered no authority in support of his contention. It is not the duty of this Court on appeal to search for legal authority to enable an appellant's counsel to obtain a reversal of a judgment against his client. We are not able to conclude that the court erred in the respect urged. See also: West v. State (1874), 48 Ind. 483, 488.

Appellant next complains of error in the failure of the court to give appellant's tendered instruction 38 concerning circumstantial evidence and according to which instruction the jury were required to give such evidence 'careful and patient consideration'.

Appellant has again cited no authority to the effect that such instruction is a correct statement of the law. In this case there was direct evidence to prove the corpus delicti, and appellant's...