Gears v. State

• Citation: 203 Ind. 380,180 N.E. 585
• Decision Date: 29 March 1932
• Docket Number: No. 25154.,25154.
• Parties: GEARS v. STATE.
• Court: Supreme Court of Indiana

203 Ind. 380

180 N.E. 585

GEARS

v.STATE.

No. 25154.

Supreme Court of Indiana.

March 29, 1932.

Appeal from Gibson Circuit Court; C. A. Smith, Judge.

Omer Gears was convicted of grand larceny, and he appeals.

Affirmed.

Oscar Lanphar and W. D. Hardy, both of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edw. J. Lennon, Jr., Deputy Atty. Gen., for the State.

TREANOR, J.

Appellant was charged by affidavit, filed in the Gibson circuit court, with the offense of grand larceny; the substance of the charge being that, on the 3d day of July, 1925, the defendant did unlawfully and feloniously take, steal, and carry away of the personal goods and chattels of one John Schmidt fifty chickens of the value of $60. There was a jury trial, and the jury returned a verdict of guilty. Upon the verdict, judgment was entered sentencing appellant to the Indiana State Prison for not less than one nor more than fourteen years; and assessing a fine of $100 and disfranchising him for a period of one year.

Appellant assigns as error the overruling of his motion for a new trial. In support of his motion for a new trial, the appellant specifies 50 causes. In his brief only 42 causes are set out, and these causes are reduced under “Points and Authorities” to seven propositions. Our discussion will center around these propositions, but will not follow the order in which they are presented.

Appellant's first proposition goes to the question of the sufficiency of the evidence to support the verdict. We shall postpone consideration of this until we shall have disposed of propositions 2 and 3 which present questions of admissibility of certain evidence.

[1] Appellant's second proposition is as follows: “Having admitted evidence of theft of chickens on July 3rd, 1925, as charged in cause No. 25154, *** it was error to admit evidence of distinct and separate crimes at other times.”

In support of this proposition, the appellant urges that “the proof of other offenses or occurrences of similar nature is permissible only where the motive, intent or guilty knowledge of the defendant is in issue, or perhaps to identify the defendant.” In Zimmerman v. State (1921) 190 Ind. 537, 130 N. E. 235, 237, Myers, J. speaking for this court, after recognizing the general rule that “evidence of the commission of entirely separate and distinct offenses cannot be received for the purpose of showing a disposition to commit the crime charged, or that the accused probably committed it,” stated as equally well established, the following proposition: “But to this rule, from necessity to aid in the detection and punishment of crime, there are many exceptions as firmly fixed as the rule itself. To state the exceptions generally it can be said that, when the act constituting the crime has been established, then any evidence tending to show motive, intent, or guilty knowledge, if in issue, or evidence which directly or as a natural sequence tends to show the defendant guilty of the crime charged, is competent, although it also tends to show him guilty of another and distinct offense. Frazier v. State, 135 Ind. 38, 34 N. E. 817;Clevenger v. State, 188 Ind. 592, 125 N. E. 41;Underhill v. State [185 Ind. 587, 114 N. E. 88], supra; People v. Thau, 219 N. Y. 39, 113 N. E. 556, 3 A. L. R. 1537;Thompson v. United States, 144 F. 14, 16, 75 C. C. A. 172, 7 Ann. Cas. 62;State v. O'Donnell, 36 Or. 222, 61 P. 892.”

The opinion also quotes from People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, to the point that evidence of other crimes is admissible when “it tends to establish *** (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.”

The foregoing propositions are supported both by reason and authority. See cases and annotations in 3 A. L. R. pages 1535, 1537, 1540;27 A. L. R. 351, 357;63 A. L. R. 595, 602. The subject of admissibility of evidence of other offenses was discussed at length in the Ohio case of Whiteman v. State, 119 Ohio St. 285, 164 N. E. 51, 52, 63 A. L. R. 595. The following excerpts are from that case:

“In its last analysis the problem is one of relevancy. In all cases, civil and criminal, evidence must be confined to the point in issue and must be relevant to the issue. ***

“The mere fact that testimony is logically relevant does not in all cases make it admissible. It must also be legally relevant. A fact which in connection with other facts renders probable the existence of a fact in issue may still be rejected, if in the opinion of the judge and under the circumstances of the case it is considered essentially misleading or too remote. The problem in the instant case is to determine whether the testimony of other offenses is too remote, or whether it is more likely to mislead and bring about the conviction of the defendants because of their participation in other crimes, rather than because of their participation in the crime charged in the indictment.”

There is no reason why a court should admit evidence of offenses that are entirely unrelated to the offense for which a defendant is on trial. But we have a different problem when the relation which exists between the other offenses and the one under investigation is such that evidence of defendant's participation in the other offenses is also evidence tending to show that defendant is guilty of the offense charged.

“It is only on rare occasions that proof of the commission of another crime by a defendant is either necessary or helpful towards establishing the crime with which he is charged. Hence the evidence is ordinarily irrelevant, while at the same time its admission would necessarily operate to so prejudice a jury against a defendant as that in a doubtful case it might control the verdict. *** But it has never been held by any court of responsible authority that the people cannot prove the facts constituting another crime, when those facts also tend to establish that the defendant committed the crime for which he is on trial. Such a holding would accomplish the absurd result of permitting a rule intended to prevent a defendant from being prejudiced in the eyes of the jury because of his life of crime to so operate in certain cases as to prevent the people from proving the facts necessary to convict him of the crime charged.” Parker, C. J., in People v. Molineux, page 340 et seq. of 168 N. Y., 61 N. E. 286, 312, supra.

We consider that this court has adopted, and correctly so, the rule that evidence of the commission of other offenses is admissible, not only to negative an innocent intent, but also to prove that the defendant committed the act constituting the crime with which he is charged; and this evidence is admissible for the latter purpose either because it tends to identify the defendant as the perpetrator of the offense or because it shows a scheme or plan on the part of the defendant to commit a series of offenses, one of which is the offense in question. The admissibility of the evidence relating to other offenses presents a question for the sound discretion of the trial court, guided only by very general standards or tests. Wigmore in his treatise on Evidence states, as an axiom of the law of evidence, that “all facts having rational probative value are admissible, unless some specific rule forbids”; that in our system of evidence the rules of exclusion are, in their ultimate relation, rules of exception to a general admissibility of all that is rational an probative. The learned author explains that this principle does not mean that everything that has probative value is admissible; but that “the true meaning is that everything having a probative value is ‘ipso facto’ entitled to be assumed to be admissible, and that therefore any rule of policy which may be valid to exclude it is a superadded and abnormal rule;” and that “these rules of policy as merely so many reserved spaces in the vast territory of logically probative material.” Wigmore on Evidence, vol. 1, § 10. In the instant case, the evidence of other offenses and of circumstances connected therewith, when considered in the light of the circumstances of the offense with which the defendant was charged, substantially tended to identify the defendant as the perpetrator of the crime charged, and also to show a scheme or plan to commit a series of acts of larceny which included the crime charged. (See discussion of the evidence, infra, p. 586 et seq.) The evidence was not merely logically relevant, but was legally relevant, and the trial court properly admitted it.

[2] Appellant's third proposition is as follows: “Appellant was arrested without a warrant, for a misdemeanor, not committed within the presence of the officers, on the night of July 11th, and thereupon searched and his body examined, and it was prejudicial error to admit evidence of what was disclosed by this search and examination.”

Appellant assumes as the basis of the foregoing proposition that he was under illegal arrest at the time of the “search and examination.” The record discloses that appellant was taken into custody by the police of Evansville, Ind., about midnight of July 11th, and without a warrant. On Sunday, July 12th, two officers from Gibson county went to Evansville and brought appellant to Somerville in Gibson county. The evidence shows that one of these officers, the sheriff of Gibson county, was acting under a warrant issued upon an affidavit charging a misdemeanor; that appellant was brought to Somerville under the authority of this warrant, and was being held under it at the time of the examination and search. Even if it be granted that the appellant was under illegal restraint while being held by the Evansville police, such fact would not taint with illegality the subsequent detention, under a legal warrant, by the sheriff of Gibson...