Gayer v. State

Decision Date19 October 1965
Docket NumberNo. 30429,30429
Citation247 Ind. 113,210 N.E.2d 852
PartiesRoger V. GAYER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William J. Marshall, Princeton, for appellant.

John Dillon, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., Frederick J. Graf, Edgar S. Husted, Deputy Attys. Gen., for appellee.

MYERS, Judge.

Appellant was charged by affidavit with the crime of assault and battery upon one Burkee Hill at a tavern near Princeton, Indiana. He was tried and convicted by a jury of the crime as charged and was sentenced to the Indiana State Farm for a period of 180 days and was fined One Dollar. Appellant's motion for a new trial was overruled, and this appeal followed. The only error assigned is the overruling of the motion for new trial.

In his motion for new trial appellant lists forty-four specifications of error. However, in his brief he assigns only ten of these, thus waiving the other thirty-four. Stevens v. State (1959), 240 Ind. 19, 29, 158 N.E.2d 784, 789; Supreme Court Rule 2-17(f). The specifications of error urged and argued by appellant are labeled as Propositions 'A' through 'J.' We shall refer to them by the same designation and discuss them in substantially the same order.

Under Proposition 'A,' appellant contends that the trial court committed reversible error by permitting over appellant's objection testimony regarding the future condition of the victim of the alleged assault and battery. The specific question complained of is:

'Q. What is your opinion, if any, as to how his condition will remain? What it will become?'

The answer given to this question is:

'A. Of course, I haven't seen him since September when he was discharged from the hospital, but in my opinion he will never improve satisfactorily enough, if he improves at all, to carry on any duties on his own as far as taking care of himself. In my opinion it's a permanent injury.'

Appellant argues that this is not a personal injury case and that therefore the above testimony is irrelevant and prejudicial and its introduction constitutes reversible error.

This is a matter of first impression in this state, while the authorities elsewhere, which have passed upon this question, are divided. Thus, a group of cases of which Claypoole v. Commonwealth (Ky., 1960) 337 S.W.2d 30, 87 A.L.R.2d 923, is the most recent and upon which appellant relies, hold adversely to the introduction of testimony of future effect of injuries of an assault. Other cases, however, such as Commonwealth v. D'Agostino (1962), 344 Mass. 276, 182 N.E.2d 133, permit the introduction of such testimony, holding that whether such evidence is so inflammatory in nature as to outweigh its probative value and preclude its admission is a question to be determined by the trial judge in the exercise of his sound discretion. Our attitude in regard to admission of testimony into evidence is more in line with the relationale of the latter authorities, for in Indiana the general rule is that the trial court has discretion with respect to reception of evidence and that its ruling will not be disturbed on appeal in the absence of abuse of such discretion. 9 West's Indiana Law Ency., Criminal Law, Ch. 30, Sec. 720, p. 221.

In the case at bar, we do not feel that the trial judge abused his discretion since the testimony in question was relevant for a number of reasons. The testimony could be considered by the jury for the purpose of deciding whether the acts charged in the affidavit were done in a rude, insolent, and angry manner. Also, it clarified for the jury the absence of the victim as a witness for the prosecution. Finally, since it was the jury's duty to fix the amount of punishment, the testimony in question provided the jury with a yardstick upon which to base such punishment. Acts 1927, Ch. 200, Sec. 1, p. 574, as found in Burns' Ann.Stat., Sec. 9-1819, 1956 Replacement.

Under Proposition 'B' appellant contends that a reversible error occurred when State's witness Hovey Pauley was permitted to testify over objection about a statement made by a third party in appellant's presence. The allegedly incompetent material is as follows:

'A. Well, as I say, I never heard Roger say a word now, but he was listening to this--this man was standing up and raising hell and telling him: 'What did you beat up on this old man for.' And I walked on by. That's all I heard.

'Q. You never heard Roger say anything?

'A. He never said anything, not in my presence while I was around there.'

Appellant argues that the testimony of a statement accusing appellant of the crime is hearsay and, therefore, is improper. We cannot agree, for, as it was stated in Rickman v. State; Lawrence v. State (1952), 230 Ind. 262, 267, 103 N.E.2d 207, 210:

'The general rule is that when one charged with an offense, or against whom an accusation is made, remains silent or fails to contradict or explain the testimony, providing the circumstances afford him an opportunity to speak, then the charge or accusation is in the nature of an admission.'

The testimony of such conduct is admissible into evidence. Diamond v. State (1924), 195 Ind. 285, 291, 144 N.E. 250, 466.

Under Propositions 'C,' 'D,' and 'J,' which we shall discuss together since all three deal with questions regarding instructions, appellant argues that error was committed when the trial court refused to give appellant's tendered instructions numbered 12, 18 and 22. In essence, appellant's tendered instruction No. 12 states that if the jury believes that the credibility of State's witness Eva Wood has been successfully impeached, then the jury should disregard her testimony. It is a well-settled rule that when a requested instruction is substantially covered by other instructions given by the trial court, no error is committed by refusal to give the requested instruction. Eastin v. State (1954), 233 Ind. 101, 117 N.E.2d 124. In the instant case, the trial court's instruction No. 6 substantially covered the matter in question when it charged the jury with the duty of being the judges of the credibility of the witnesses. The same instruction also informed the jury what elements to weigh when deciding the credibility of witnesses and that in a case of conflict it was for the jury to decide which version to believe. In addition, it should be noted that appellant's tendered instruction No. 12 attempts to single out one particular witness. Such use of an instruction is improper. Moore v. State (1926), 198 Ind. 547, 153 N.E. 402, 154 N.E. 388.

The first part of appellant's tendered instruction No. 18 reads as follows:

'Evidence has been introduced to show the defendant made certain admissions appearing in evidence. Verbal statements or admissions should be received by you with great caution, as they are subject to much imperfection and mistake, owing to the person speaking not having clearly expressed his own meaning, or the person spoken to not having clearly understood the speaker.'

This statement in itself is a proper admonition to the jury since the State had introduced testimony of an admission made by appellant. However, tacked to this statement is an observation to the effect:

'It frequently happens, also, that the witness, by unintentionally altering a few words or expressions really used, gives an effect to the statement entirely at variance with what the speaker actually did say. But when such verbal statements are precisely given, and identified by intelligent and reliable witnesses, they are often entitled to great credit.'

To give such an instruction to the jury, as embodied in the latter part of appellant's tendered instruction No. 18, would be as improper as if the trial court were to tell the jury that individuals charged with a crime are often guilty. Therefore, no error was committed by the trial court in refusing to give appellant's instruction No. 18 since a court may refuse to give the whole instruction where a part of it is erroneous. Cole v. State (1932), 203 Ind. 616, 620, 173 N.E. 597.

Similarly, the court did not err in refusing to give appellant's tendered instruction No. 22. The purpose of this instruction was to inform the jury about the value of circumstantial evidence. This court has held that where there is direct evidence sufficient to convict, an instruction on circumstantial evidence alone may be refused. Wolfe v. State (1929), 200 Ind. 557, 159 N.E. 545. Such is the situation in the case at bar, for State's witness Eva Wood testified that she saw appellant threaten and later kick and beat Burkee Hill, the victim of the assault and battery.

Under Proposition 'E,' appellant contends that reversible error occurred when the trial court overruled appellant's motion to strike in regard to the following:

'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.'

Appellant claims that the above answer constitutes hearsay. However, after careful consideration, we feel that no reversible error exists. First, it is a general rule of evidence that a motion to strike must designate the unresponsive portion of the answer if the answer is not entirely unresponsive, and if the motion to strike goes to the entire question and only part of the answer is unresponsive, the trial court may properly overrule the motion. Mueller v. Mueller (1948), 118 Ind.App. 274, 277, 78 N.E.2d 667. Second, hearsay evidence of an uncontested fact is necessarily harmless, and this court will not reverse because of harmless error. Hedrick v. State (1951), 229 Ind. 381, 98 N.E.2d 906. In the case at bar, there is no conflict in the evidence that Burkee Hill was beaten. At most, appellant attempted to create an implication that...

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  • Robinson v. State, 2-1072A80
    • United States
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    ...State justified it as an admission against interest, citing Diamond v. State (1924), 195 Ind. 285, 144 N.E. 466, and Gayer v. State (1965), 247 Ind. 113, 210 N.E.2d 852. In Diamond the rule is stated 'Where a charge is made in the presence and hearing of a person accusing him of a crime, hi......
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