Gayer v. State

• Decision Date: 21 December 1965
• Docket Number: No. 30429,30429
• Citation: 212 N.E.2d 544,247 Ind. 113
• Parties: Roger V. GAYER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 544

212 N.E.2d 544

247 Ind. 113

Roger V. GAYER, Appellant, v.STATE of Indiana, Appellee.

No. 30429.

Supreme Court of Indiana.

Dec. 21, 1965.

William J. Marshall, Princeton, for appellant.

John J. Dillon, Atty. Gen., for appellee.

MYERS, Chief Justice.

In his petition for rehearing, appellant has attacked the court's opinion wherein it stated that hearsay evidence of an uncontested fact admitted over objection is harmless when there is no conflict in the evidence.Appellant argues that there was a conflict since his main defense in this case was that Burkee Hill was injured from a fall rather than being beaten.Appellant took the witness stand on his own behalf and was the only one to testify in his defense.He stated that he did not strike, kick or beat Burkee Hill.This, of course, supplemented his plea of not guilty.The jury chose not to believe him.Tait v. State(1963), 244 Ind. 35, 45, 188 N.E.2d 537.The only other witness relied upon was a physician called by the State who testified as to Burkee Hill's injuries following an examination.On cross-examination, he said that the bruises which he had described on Burkee Hill's back could have possibly occurred from a fall.

Appellant complains that a police officer's statement in the trial was hearsay evidence and so prejudicial as to constitute fatal error on the part of the court when it was admitted in evidence over objection and motion to strike.The officer had been called to the scene of the trouble.The following colloquy took place:

'Q.What did you do at that time?

'A.We checked the complaint.He was reported as being beaten up.

'BY MR. MARSHALL:

'Now, your honor, we are going to object to that statement.It wasn't made in response to any question.It was hearsay and we move it be stricken from the record.

'BY THE COURT:

'Objection overruled.He didn't say what was said.'

Before the police officer volunteered this statement, a sufficiency of evidence had been introduced by the State to prove that Burkee Hill had been beaten by appellant.From this, the jury could have been convinced that appellant was guilty.Assuming that there was a conflict in the evidence, and that the admission of the officer's report was error as being hearsay, it will not constitute reversible error as it appears that such testimony would not reasonably have affected the result.

In Pooley v. State(1945), 116 Ind.App. 199, 205, 62 N.E.2d 484, 486, a case involving juvenile delinquency, there was objection to the testimony of a witness to support the special findings of fact and decision of the court because it was pure hearsay.It was conceded that the testimony was largely hearsay.The court, speaking through Judge Crumpacker, said:

'As against the single assignment of error that the decision of the court is contrary to law it makes little difference whether this evidence is considered or not as there is ample evidence in the record to sustain the court's special findings without it and the facts so found unquestionably warrant the decision rendered.'

SeeAnnotation8 A.L.R.2d 1013.

In People v. Ramirez(1959), 171 Cal.App.2d 565, 567, 340 P.2d 665, 666, the trial court denied the defendant's motion to strike a remark made by a police officer which was not in response to a question.The officer stated:

"* * * I said that after so many complaints we had about you robbing people when they were drunk, that maybe this time you were finally going to get caught."

The District Court of Appeals held that the trial court erred in denying defendant's motion to strike, but held further as follows:

'Appellant's guilt of robbery was clearly shown by the testimony of Estrada and Maciel.The court accorded it full credit and we can do...