Dwigans v. State

Decision Date19 April 1944
Docket Number27946.
Citation54 N.E.2d 100,222 Ind. 434
PartiesDWIGANS v. STATE.
CourtIndiana Supreme Court

Appeal from Shelby Circuit Court; Harold G. Barger Judge.

Walter C. Reese, of Shelbyville, for appellant.

James A. Emmert, Atty. Gen., and Frank Hamilton and Frank E Coughlin, Deputy Atty. Gen., for appellee.

SHAKE Judge.

The appellant was charged by an affidavit in two counts with having inflicted a personal injury upon another with a dangerous instrument while engaged in the commission of a robbery and with robbery proper. The prosecution was based upon § 6, ch. 148, Acts 1941, § 10-4101, Burns' 1942 Replacement, § 2416-1, Baldwin's Supp.1941.

On motion of the prosecuting attorney, made before the beginning of the trial, the court permitted the second count of the affidavit, which was properly signed and sworn to, to be amended by inserting the name of the affiant in the body thereof. This did not substantially change the effect of the count, and the amendment was therefore authorized by § 9-1133, Burns' 1933, § 2132-1, Baldwin's Supp.1935 Beller v. State (1883), 90 Ind. 448.

At the conclusion of the State's evidence the appellant made a motion for a directed verdict. The motion was sustained as to the first count and overruled as to the second. Thereafter the appellant offered evidence, thereby waiving the motion for a directed verdict as to the second count of the affidavit. Fausett v. State, 1942, 219 Ind. 500, 39 N.E.2d 728. White v. State, 1941, 219 Ind. 290, 37 N.E.2d 937.

It is claimed that the trial court erred in permitting the appellant's wife to testify against him, in violation of § 2-1714, Burns' 1933, § 303, Baldwin's 1934. This statute does not make a husband or wife an incompetent witness generally. It merely prohibits a spouse from disclosing confidential communications and information gained by reason of the marital relationship. Smith v. State, 1926, 198 Ind. 156, 152 N.E. 803. The record before us discloses that the trial court excluded the testimony offered by the appellant's wife which came within this rule, in every instance in which a timely objection was interposed. Besides, the appellant's motion for a new trial was insufficient to save this alleged error. The only assignment in the motion with respect to the wife's testimony was as follows:

'That the court erred in overruling the defendant's objection to the introduction of testimony of the wife of the defendant.'

The established practice of this state requires that when it is desired to predicate error upon the admission or rejection of testimony, the motion for a new trial shall set out the question and answer, if there was...

To continue reading

Request your trial
5 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • 7 Octubre 1975
    ...wife from disclosing confidential communications does not make the wife incompetent to testify against her husband. Dwigans v. State (1944), 222 Ind. 434, 54 N.E.2d 100. Merry's assertion that his wife is incompetent to testify is actually an assertion of the marital privilege of confidenti......
  • Way v. State
    • United States
    • Indiana Supreme Court
    • 21 Mayo 1946
    ... ... thus made was for the purpose of [224 Ind. 287] correcting a ... defect, imperfection or omission in form only, and it made no ... change in the name of the defendant or in the substance of ... the crime sought to be charged, it was permissible under this ... section of the statute. Dwigans v. State, 1944, 222 ... Ind. 434, 436, 54 N.E.2d 100; Edwards v. State, ... 1942, 220 Ind. 490, 44 N.E.2d 304; Peats v. State, ... 1938, 213 Ind. 560, 567, 12 N.E.2d 270 ...          To ... ascertain whether the amendment corrected a defect, ... imperfection or omission in form, or ... ...
  • Shepherd v. State
    • United States
    • Indiana Supreme Court
    • 18 Octubre 1971
    ...§ 275), the matter is actually one of privileged communication. Smith v. State (1926), 198 ind. 156, 152 N.E.2d 803; Dwigans v. State (1944), 222 Ind. 434, 54 N.E.2d 100. Further, it has been restricted in its application to confidential communications and information gained by reason of th......
  • Jeffers v. State, 28997
    • United States
    • Indiana Supreme Court
    • 27 Octubre 1953
    ...it to be made. Peats v. State, 1938, 213 Ind. 560, 12 N.E.2d 270; Edwards v. State, 1942, 220 Ind. 490, 44 N.E.2d 304; Dwigans v. State, 1944, 222 Ind. 434, 54 N.E.2d 100; Krauss v. State, 1947, 225 Ind. 195, 73 N.E.2d 676; Marshall v. State, 1949, 227 Ind. 1, 83 N.E. 763; Souerdike v. Stat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT