Green v. State

• Citation: 63 N.E.2d 292,223 Ind. 614
• Decision Date: 07 November 1945
• Docket Number: 28067.
• Parties: GREEN v. STATE.
• Court: Indiana Supreme Court

63 N.E.2d 292

223 Ind. 614

GREEN v. STATE.

No. 28067.

Supreme Court of Indiana

November 7, 1945

Appeal from Marion Criminal Court; Philip Lutz Special judge.

Joseph M. Howard and William E. Reiley, both of Indianapolis, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, 1st Asst. Atty Gen., for appellee.

O'MALLEY Judge.

This was a proceeding by affidavit against Newton Green, the appellant, and Howard Phillips charging robbery in Marion County, Indiana. The appellant entered a plea of not guilty to the charge and after trial separately he was found guilty as charged. The overruling of the motion for a new trial is the error relied on in this appeal.

The alleged errors can be placed in four classes. The first refers to the failure of the court to permit experiments in court to test the memory and ability of a witness to pick out the defendant by appearance and by voice; the second involves two instances wherein it is claimed that the deputy prosecuting attorney made statements that were so harmful that the motion to withdraw the submission should have been sustained; the third concerns newly discovered evidence; and the fourth questions the refusal of the court to permit a police officer to testify as to the criminal record of Howard Phillips, a witness for the State, and one of the persons named as committing the charged robbery.

In the first class of claimed error, the defense attorney brought five men into the court room dressed in overcoats, caps and masks, and had them take their stand in front of the court. He then asked the following question, to which answer as set out was given:

'Q. Here are five masked men. I will ask you Mr. Johnson to pick out the defendant, in, say, thirty seconds? A. They didn't look like that anyway.'

Thereupon objection to such procedure in the court was made by the deputy prosecuting attorney and the following took place:

'The Witness: It is pretty hard to test it when you can't see the man.

'Mr Reiley: Pick out this man in thirty seconds, Mr. Johnson.

'Mr. Rabb: Your Honor, there is an objection before the Court.

'The Witness: Take the masks off and I will pick them out for you.

'The Court: Under the objection, I don't think this is proper evidence.'

Experiments which are permitted in a court room must be such as to aid the court and jury and not such as may merely confuse the minds of the jury on any issue. Furthermore, a matter of this kind is addressed to the sound discretion of the court, and unless an abuse of that discretion is shown, we cannot disturb the judgment. Lake Erie & Western Railroad Co. v. Mugg, Administrator, 1892, 132 Ind. 168, 31 N.E. 564; 85 A.L.R. 482; 8 A.L.R. 24.

In referring to this class of evidence this court, in the case of Lake Erie & Western Railroad Co. v. Mugg, Administrator, supra, 132 Ind. at page 174, 31 N.E. at page 566, said:

'Under some circumstances this class of evidence may be very satisfactory, but unless the experiments are shown to have been made under essentially the same conditions that existed in the case on trial, the tendency is to confuse and mislead, rather than enlighten, the jury. Commonwealth v. Piper, 120 Mass. [185], 188; Eidt v. Cutter, 127 Mass. 522; State v. Justus , 8 P. 337 '

In the case at bar, the conditions were not the same, nor were they essentially the same. The demand was that in thirdy seconds the witness should pick out the defendant from the five men presented. The witness stated that they were neither dressed nor masked like the robbers, and that he could not pick out the defendant. The court did not commit error in refusing to permit it to go to completion.

Another experiment which would have tested the ability of the witness to recognize the voice of the defendant was attempted, but recognition by voice was not involved in this case, and the witness stated that he could not recognize the defendant as one of the robbers, by his voice. It was an attempt to test the witness under conditions created to the satisfaction of the defense counsel, but in no way approaching the conditions existing at the time of the robbery. This experiment was likewise properly excluded.

The second class of claimed error involves two incidents that occurred in the trial. During the trial, the appellant was complaining that the State had not charged the witness Howard Phillips, with being an habitual criminal, and a dispute arose on this matter between the defense attorney and the deputy prosecuting attorney. The defense attorney stated that the witness should have been charged as an habitual criminal because of his known record, and the deputy prosecuting attorney stated that the State had the same kind of record on the defendant. This took place in the presence of the jury, and the defense immediately moved for a withdrawal of the submission because of the statement in regard to the record of the defendant. This motion was overruled, but the court admonished the jury not to...