Hergenrother v. State

• Decision Date: 31 January 1939
• Docket Number: 27051.
• Parties: HERGENROTHER v. STATE.
• Court: Indiana Supreme Court

18 N.E.2d 784

215 Ind. 89

HERGENROTHER v. STATE.

No. 27051.

Supreme Court of Indiana

January 31, 1939

Appeal from Vanderburgh Circuit Court; A. Dale Eby, Special judge.

Edward Crabtree and Benj. Zieg, both of Evansville for appellant.

Omer Stokes Jackson, Atty. Gen., and Jas. Northam, Deputy Atty Gen., for the State.

ROLL Judge.

Appellant was convicted of the crime of robbery while armed upon an amended affidavit. The error assigned is the overruling of his motion for a new trial. The first proposition relied upon questions the correctness of instruction No. 15, given by the court of its own motion. This instruction stated that 'Evidence has been given in this cause to the effect that the defendant was present at the scene of other robberies a short time before and a short time after the commission of the alleged robbery on which the defendant is being tried * * *.'

The instruction further stated that the evidence could not be considered in determining the guilt or innocence of the defendant but for the purpose only of showing the identity of the defendant.

Appellant objects to that part of the instruction which told the jury that evidence had been given to the effect that the defendant was present at the scene of robberies after the commission of the alleged crime upon which he was being tried; for the reason that there was no evidence that defendant was present at the scene of any robbery after the commission of the crime charged. There was some evidence that the appellant was at the scene of other robberies before the commission of the crime charged, but no evidence whatever that any robberies were committed after the one alleged in the affidavit or that appellant was at the scene of any robbery thereafter.

Appellant contends that this instruction assumes a fact in reference to which there was no evidence and invades the province of the jury and is therefore clearly erroneous.

The rule appellant relies upon has no application to the one presented by this instruction. The fact assumed to exist by this instruction was neither a material fact nor was it a fact the jury was required to find from the evidence. While the instruction was inaccurate and told the jury that there was evidence introduced which was not, yet the jury could not have been misled by such a statement by the court and consequently no harm came to appellant by reason thereof. Neither did the court assume that a fact upon which there was conflicting evidence, had been proven. So the instruction does not present such a state of facts as would fall within the prohibition of that rule. We find no reversible error in instruction No. 15.

The second proposition complained of relates to the admission of certain evidence. The State's witness James Kirkwood, who was in the automobile with appellant on the night of the alleged robbery, was permitted to testify over the objections of appellant, in substance, that he and appellant entered a restaurant at Eighth and Ingle streets in the City of Evansville and robbed it, prior to but the same night, the alleged robbery of the filling station upon which appellant was on trial, was committed. Also the same witness was permitted to testify that appellant on the night previous to the commission of the robbery charged entered the home of one William H. Sandefur, and robbed him of some twelve dollars also the witness was permitted to testify to the effect that appellant on March 5th, three nights prior to the alleged robbery, entered another house for the purpose of robbery. Other witnesses were permitted to testify in corroboration of the evidence given by the witness James Kirkwood. The admissibility of this evidence constitutes the burden of appellant's brief.

Appellant says that the evidence tended to prove him guilty of three separate, distinct and independent offenses, unrelated to the offense with which he was on trial.

Appellee admits the general rule, which is to the effect that evidence of a separate, independent and distinct crime from that which is the subject of judicial inquiry in a criminal trial is inadmissible; but contends that there is a well recognized exception to this general rule, and that the evidence to which appellant objected, comes within this exception, and was properly admitted. We quote from page seven of appellee's brief: '1. It is conceded that the general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. Although this general rule is universally recognized, the exceptions to it are just as firmly fixed in our law. The exceptions to the general rule cannot be stated with categorical precision, but generally speaking, evidence of other crimes is competent to prove the specific crime charged, when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proving of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.'

In the case of Gears v. State, 1931, 203 Ind. 380, 180 N.E. 585, this court fully considered the question of the admissibility of evidence of other crimes. The following excerpt from that opinion clearly states the rule of this court on that subject:

'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 [1893], 135 Ind. 38, 34 N.E. 817; Clevenger v. State [1919], 188 Ind. 592, 125 N.E. 41; Underhill v. State, (185 Ind. 587, 114 N.E. 88) supra; People v. Thau [1916], 219 N.Y. 39, 113 N.E. 556, 3 A.L.R. 1537; Thompson v. United States [1906], 144 F. 14, 16 75 C.C.A. 172, 7 Ann.Cas. 62; State v. O'Donnell [1900], 36 Or. 222, 61 P. 892.'

'The opinion also quotes from People v. Molineux (1901) 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 [Bateman v. State, 81 Tex.Cr.R. 73, 193 S.W. 663] 3 A.L.R. pp. 1535, 1537, 1540; [Barnett v. State, 104, Ohio St. 298, 135 N.E. 647] 27 A.L.R. 351, 357; [Whiteman v. State, 119 Ohio St. 285, 164 N.E. 51] 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 [1928], 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...