Henry v. State

• Decision Date: 10 March 1925
• Docket Number: No. 24720.,24720.
• Court: Indiana Supreme Court
• Parties: HENRY v. STATE.

196 Ind. 14

146 N.E. 822

HENRY

v.STATE.

No. 24720.

Supreme Court of Indiana.

March 10, 1925.

Appeal from Circuit Court, Johnson County; Fremont Miller, Judge.

William Floyd Henry was convicted of petit larceny, and he appeals. Reversed, with instructions to grant new trial.

Featherngill & Drybread, of Franklin, for appellant.

U. S. Lesh, Atty. Gen., for the State.

GEMMILL, J.

Appellant was prosecuted upon an indictment charging him with grand larceny. The charge was that, on July 17, 1923, in Johnson county, he did then and there unlawfully and feloniously steal, take, and carry away of the personal goods and chattels of Ossie Brann 50 chickens of the value of $40. The trial was by jury and he was found guilty of petit larceny. A motion for a new trial was overruled and judgment rendered on the verdict.

[1] It is assigned as error that the trial court erred in overruling appellant's motion for a new trial. The motion for same contains nine separate and distinct causes. Causes numbered 1, 2, 3, 4, 5, and 6 are alleged errors of the court in excluding certaintestimony therein set forth, offered on cross-examination. Cause numbered 7 is an alleged error of the court in giving to the jury of its own motion instructions numbered 1 to 16, inclusive, and in giving each of said instructions. Cause numbered 8 is that the verdict of the jury is contrary to law. And cause numbered 9 is that the verdict of the jury is not sustained by sufficient evidence. Cause numbered 7 for a new trial, which is the giving of instructions, is not urged in this appeal, and, by reason of failure to cite authorities or to present the alleged error, it must be deemed waived or abandoned.

[2] The evidence, on behalf of the state, was wholly circumstantial. From same it appears as follows: At 1 o'clock on the morning of the day named in the indictment one Ossie Brann who lived three-fourths of a mile southwest of Greenwood was awakened by the barking of her dog. She got up, went to the front door and looked south, as she heard an automobile running in that direction. The automobile went south about a quarter of a mile, turned around, and came back, and when it got even with her home she turned on the porch light and saw that it was a Ford roadster. She investigated and discovered that about 50 chickens owned by her of the value of $40 were gone. She notified two parties over the telephone of her loss, and she and her husband got in their automobile and went in the direction she had seen the Ford roadster go. They could see the light of an automobile in the distance,. but never caught up with it. Later Clarence Brann, her husband, and some neighbors inspected the automobile tracks in the road where the automobile she had seen turned around. They found that the tire on the left rear wheel made an impression that resembled the letter H with the long parts out, or a horseshoe or a muleshoe. The other three tires made impressions that resembled the letters I and O, one end of the letters being very dim. Said Clarence Brann and two neighbors, Sam Cutsinger and Leander Browning, the former being an officer, followed the tracks of the said automobile to a point about four miles southwest of the Brann home and back to a cemetery one-half mile north of where Mrs. Brann lived. While the said parties were at that place on the highway about 7 o'clock in the morning, the appellant drove past in a Ford roadster. He came from the direction of Greenwood which was east and went south. Noticing a similarity in the tracks made by the Ford roadster which he was driving to the tracks which they had been investigating, they followed him for a few miles and caught up with him, when he stopped at the side of the road on account of his automobile being out of gasoline. The appellant was asked where he had been all night. He replied that he had been at Southport, where he boarded, and also said he was going to Bargersville. He was told that he would have to show that he had been at Southport all night. This he agreed to do. He took Mr. Cutsinger, who was an officer, in his automobile, and the other two men followed in another automobile, and all went to Southport, where Mr. Cutsinger talked to Mrs. Decker, with whom the appellant boarded, away from the appellant, who did not talk to her. After that he was allowed to go, and was not placed under arrest at that time. A day or so later the appellant took his automobile to a garage in Greenwood and had the left rear tire removed and another put in its place, and had the car cleaned out. The party who did the work said that the appellant asked him to hide the tire or to put it away for him where no one could get it, and keep it for him, and said that in the car he found some yellow feathers, some straw, and a sack. The appellant was a barber in Southport, and when seen on that morning he was coming from the direction of the place he lived. When stopped by said parties and questioned by them he was pale and nervous. Most of the stolen chickens, some dead and some alive, were found later in the day in two sacks a short distance from the Brann residence along the side of the road. The witness who removed the tire from the appellant's automobile testified that he had seen two other cars with the same kind of tire, which was on the left rear wheel of appellant's roadster.

Appellant claims in the first cause for new trial that error of law occurred at the trial in this, that the court refused to permit the witness Sam Cutsinger to answer a question on cross-examination propounded to him as a witness by defendant's counsel, as to whether or not he said to Leander Browning and Clarence Brann, in the presence of the defendant in Southport, that Mrs. Decker said that he (the defendant) was at home all night. Causes numbered 3, 4, and 5 were alleged errors in the court refusing to permit the said witness to answer other similar questions in regard to what he might have said or the appellant might have said at that time, and cause numbered 6 is an alleged error in the court refusing to permit Leander Browning, a witness, to answer a like question as to what he might have said at that time. The state claims that there was not error in refusing to permit said witnesses to answer said questions propounded to them, as same were not proper cross-examination.

[3] It is a settled rule of practice in this state that the extent of the cross-examination permitted is within the sound discretion of the trial court and only an abuse of this discretion is cause for reversal on appeal. And in Ewbank's Indiana Trial Evidence, § 155, it is stated that, in order to justify a reversal on account of the admission or exclusion of questions on cross-examination, there must have been a manifest abuse of discretion to the injury of the complaining party. Appellant...