Garrison v. State
Decision Date | 04 December 1967 |
Docket Number | No. 30884,30884 |
Citation | 12 Ind.Dec. 156,249 Ind. 206,231 N.E.2d 243 |
Parties | Jerry Wayne GARRISON, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Glenn T. Williams, Greenfield, for appellant.
John J. Dillon, Atty. Gen., Donald R. Ewers, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a conviction for murder in the second degree, pursuant to which appellant, Jerry Wayne Garrison, has been sentenced to life imprisonment. Appellant was indicted and tried jointly with a co-defendant, Chester Scharbrough on a charge of first-degree murder. Appellant presents no argument that the evidence was insufficient to support the verdict. Garrison and Scharbrough both filed motions under Ind.Ann.Stat. § 9--1804 (1956), which statute provides as follows:
The only error argued by appellant in his brief is the overruling of his motion for new trial in that the trial court committed an error of law in failing to grant his motion for a separate trial.
An allegation of error in the overruling of a motion for a separate trial can only be supported by a showing of abuse of discretion on the part of the trial court. Johnson v. State (1964), 245 Ind. 295, 198 N.E.2d 373.
Appellant first contends he was prejudiced by the joint trial in that the trial court admitted police officer Robert Patton's testimony of oral statements made by Scharbrough while both defendants were in custody. Scharbrough's statements implicated the appellant and Patton said appellant was present at the time of the alleged statements.
In Kern v. State (1957), 237 Ind. 144, 144 N.E.2d 705, a third person testified, as did Officer Patton in this case, to accusatory statements made against a criminal defendant in the presence of both the third party and the defendant. This Court recognized that such testimony constituted hearsay, even though defendant was present when the statements were made.
The holding of Kern v. State, supra, is clearly applicable to this case. Since the statements made by Scharbrough did not become any part of an admission by appellant, and since Scharbrough, himself, did not testify, the statements of the officer constituted hearsay. Notwithstanding the hearsay status of the officer's testimony, however, the testimony was material to the State's case.
'A party who permits incompetent evidence on a material issue to be introduced without objection can not be heard to say on appeal that it should not be considered in determining if the finding is supported by the evidence * * * This rule has been applied to hearsay and secondary evidence, as well as to evidence rendered incompetent for other reasons.' Kern v. State, supra, at 148--149, 144 N.E.2d at 707.
The soundness of the court's discretion in denying a motion for...
To continue reading
Request your trial-
Walker v. State
...by reference to what actually transpired at trial and not what was alleged in the motion. Ortiz, Williams, supra; Garrison v. State (1967) 249 Ind. 206, 231 N.E.2d 243. A defendant is not entitled to a separate trial as a matter of right merely because damaging evidence of the actions of a ......
-
Robinson v. State
...Conway v. State, (1888) 118 Ind. 482, 21 N.E. 285, if the person is not in custody when the assertion is made, Garrison v. State, (1967) 249 Ind. 206, 231 N.E.2d 243; Thomas v. State, (1958) 237 Ind. 537, 147 N.E.2d 577; and the person has an opportunity to speak, Rickman v. State, (1952) 2......
-
Johnson v. State, 3-580A148
...by reference to what actually transpired at trial and not what was alleged in the motion. Ortiz, Williams, supra; Garrison v. State (1967), 249 Ind. 206, 231 N.E.2d 243. A defendant is not entitled to a separate trial as a matter of right merely because damaging evidence of the actions of a......
-
Garrison v. State
...was convicted of second degree murder and sentenced to life imprisonment. His conviction was affirmed by this Court. Garrison v. State (1967) 249 Ind. 206, 231 N.E.2d 243. The following errors are (1) Was the petitioner entitled to relief by reason of the State's failure to disclose a plea ......