Foreman v. State

• Decision Date: 17 March 1932
• Docket Number: No. 25193.,25193.
• Citation: 180 N.E. 291,203 Ind. 324
• Parties: FOREMAN v. STATE.
• Court: Indiana Supreme Court

203 Ind. 324

180 N.E. 291

FOREMAN

v.STATE.

No. 25193.

Supreme Court of Indiana.

March 17, 1932.

Appeal from Huntington Circuit Court; Sumner Kenner, Judge.

Fred Foreman was convicted of vehicle taking, and concealing of vehicle, knowing it to have been stolen, and he appeals.

Reversed and remanded with instructions.

Cline & O'Malley, of Huntington, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Asst. Atty. Gen., for the State.

MYERS, J.

In the court below appellant was charged, tried upon an amended affidavit, and convicted by a jury of the offense of vehicle taking and the concealing of a vehicle, knowing same to have been stolen. Section 2460, Burns' Ann. St. 1926, Acts 1921, c. 189, p. 494. On appeal to this court he has assigned as error the overruling of his motion for a new trial. In support of this motion he relies entirely upon the alleged errors of the court in admitting, over his objection, asserted incompetent evidence; refusing to admit competent evidence tendered by him; the untruthful answer of one juror upon his voir dire examination; and the overruling of his motion to vacate the judgment.

[1] Appellant was a witness in his own behalf. He denied all knowledge of the alleged theft. On rebuttal, six witnesses, over appellant's objection, were permitted to testify that his general moral character in the neighborhood in which he lived was bad. There was no error in admitting this evidence. Robinson v. State, 84 Ind. 452;Morrison et al. v. State, 76 Ind. 335;Griffith v. State, 140 Ind. 163, 39 N. E. 440.

[2][3][4] A witness called by the state on rebuttal testified only as to the bad moral character of the defendant, and on cross-examination said he first saw the defendant “about five years ago.” On redirect examination, in answer to questions:

“You say you saw Fred Foreman five years ago? A. Yes. He was a mile west of Eaton and one mile and a half north. He had slipped off in the ditch.

“Q. What was the circumstance of your seeing him at that time? A. They were all intoxicated when I saw them and had slipped off in the ditch.”

The objection to this last question (collateral, not proper rebuttal) was overruled, and a motion to strike out the answer (improper and incompetent) overruled. The motion to strike out the answer should have been sustained. There was nothing in the cross-examination to warrant either the question or the answer, and if the question was proper on redirect examination the answer was not responsive to the question nor did it have any natural connection with the pending charge. It was not therefore competent evidence in support of the charge of vehicle taking (Porter v. State, 173 Ind. 694, 91 N. E. 340;Underhill v. State, 185 Ind. 587, 114 N. E. 88), nor was it competent as tending to prove general reputation for the reason that general moral character cannot be established on direct or redirect examination by proof of particular acts or of remote extraneous crimes. Griffith v. State, supra; Davis v. State, 197 Ind. 448, 151 N. E. 329;Spencer et al. v. Robbins, 106 Ind. 580, 5 N. E. 726.

[5] Appellant reserved an exception to the ruling of the court sustaining an objection to a question propounded by him to a witness on cross-examination which tended to prove whether the prosecuting witness had said anything to him that appellant had admitted that he “helped to steal the automobile.” The witness on the stand was the sheriff of Huntington county, and the claimed admission to the prosecuting witness occurred in the Huntington county jail in a conversation between the prosecuting witness and the defendant within eight feet of the sheriff and within approximately three feet of a representative of an insurance company. The insurance company representative was not called as a witness in the case. The sheriff did not hear such admission. The object of the question was not stated, but in any event it would have involved a collateral inquiry, which was correctly excluded.

A juror on his voir dire examination answered, “No,” to the question: “Do you know Charles Rickert, the janitor of the German Reformed Church on the south side?” It is made to appear by the affidavit of appellant that he was not acquainted with the juror and was an entire stranger to the residents of Huntington county, and by the affidavits of counsel for appellant, in substance, it appears that they were endeavoring to obtain a jury who were unacquainted with the prosecuting witness Charles Rickert; that they accepted the juror's answer to the question propounded to him as correct and truthful, and knew nothing to the contrary until after the jury had returned its verdict; that they had not used more than five peremptory challenges, and had the juror answered the question truthfully, that he had known the prosecuting witness for four or five years, they would have exercised their right of a peremptory challenge to the juror. The juror, by his affidavit, admitted that he was asked the question and that he answered it as stated in the affidavit of counsel for appellant; that at the time he answered the question he did not know that a person by the name of Rickert was employed as janitor at the German Reformed Church in Huntington, Ind., but did not know him as Charles Rickert, and had no personal acquaintance with him; that he had seen Rickert about the church at times when he passed the church going from his home to the business part of the city of Huntington; that his first knowledge of Rickert's given name was after affiant was selected as a juror and Rickert appeared as a witness; that he did not give the testimony of this witness undue credence, but considered it along with all of the other evidence and “gave it such weight as he thought it was entitled to.”

From these affidavits, which were made a part of the record by a bill of exceptions, it unquestionably appears that the question propounded to the juror was sufficiently descriptive of the prosecuting witness, whom he admittedly knew, to have required a more attentive answer. While the acquaintance shown may be regarded as not intimate,...