Herman v. State, 30722
Citation | 210 N.E.2d 249,247 Ind. 7 |
Decision Date | 20 September 1965 |
Docket Number | No. 30722,30722 |
Parties | Jack R. HERMAN, Appellant, v. The STATE of Indiana, Appellee. |
Court | Supreme Court of Indiana |
Joseph P. Sullivan, Indianapolis, for appellant.
John J. Dillon, Atty. Gen., James Manahan, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, a police officer of the city of Indianapolis, was indicted for bribery and after a jury trial was convicted and sentenced for a term of two (2) to fourteen (14) years and fined in the sum of one thousand dollars ($1,000.00). Appellant assigns as error on appeal the overruling of his motion for new trial.
Among the numerous contentions of appellant on this appeal are the contentions that the verdict of the jury was not sustained by sufficient evidence, was contrary to law, and that the court erred in refusing to peremptorily instruct the jury to return a verdict for appellant.
In order to consider this matter it will be necessary that we examine the evidence in the cause favorable to appellee which was substantially as follows:
From the late nineteen thirties through the early nineteen sixties there was a large scale gambling operation in the city of Indianapolis owned by one Isaac Mitchell who was also known as Tuffy Mitchell. During these years Mitchell acquired a long police record and became well known to the Indianapolis Police Department as a numbers racketeer.
Mitchell's organization was a sizeable gambling syndicate and during the four days immediately preceding its demise, which were apparently typical, it netted $8,200.00 as shown by accounting tapes introduced at the trial.
Mitchell's syndicate derived its huge profits from numerous customers who seldom bet more than one dollar and frequently as little as one cent. Each day the winning number was taken from the newspaper from certain digits in the published averages of stocks on the New York Stock Exchange. The bettors selected any numbers they desired to bet on from such sources as consultation with dream books, license plates, or from just thinking up a number.
Customers were served by some three hundred to five hundred free-lance employees in the Mitchell operation called 'writers'. The writers would inscribe the number being wagered on a tri-copy order book together with the writer's own code number. One copy was given to the customer, one retained by the writer and one turned over to the Mitchell syndicate.
The slips for the syndicate were turned over to messengers who delivered them to 'pick-up men' who took them to the count house where the winning slips would be separated and the day's expenses and net profit computed. The location of the count house was constantly being changed and it was known only to a very few people. At the count house all receipts and expenditures were accounted for to the last penny. It was understood Mitchell trusted nobody and that he double-checked every recorded expense.
While Mitchell's gambling enterprise was efficiently run it had the glaring defect of being operated against the law and was therefore subject to arrests and harassment. If a policeman chose to watch one of its customer's places he could interfere with customers coming and going, could prevent the messengers or runners from picking up the slips, could stop the pick-up men from taking them to the count house, or do any number of things that would harass the gambling operator.
Whenever one of Mitchell's employees was arrested the syndicate would absorb the costs of the bail bondsman, the lawyer and the fine, if any. Mitchell's chief lieutenant, Van Wert Mullin, paid such bills and accounted for the same to Mitchell by making out accounting tapes for the amount thereof. Mullin also paid bribe payments in the same manner to numerous Indianapolis policemen. These payments were made regularly at the end of the police shift each month. Police captains and lieutenants received $30 per shift, and sergeants $20 per shift. Bribes were also paid to persons other than police officers and these payments ranged up to $1,500.00.
In approximately 1959 Mitchell first delegated the task of paying bribes to police officers to Mullin and he had been paying bribes to them since that time. On May 29, 1963, appellant was a police officer of the city of Indianapolis, was sergeant of a division, and assigned to Car 7 on the far north side of the city. His official duties included the duty to enforce the gambling laws of the state and also included conformity to standards of behavior outlined in police department rule book, rule 22, providing no officer should leave his assigned district without permission from his commanding officer.
On May 28 and 29, 1963, appellant was working twelve hour shifts from 8:30 p. m. to 8:30 a. m. because of the increased workload attending the running of the Indianapolis 500 mile race. At 7:20 a. m. on May 29, 1963, appellant reported to headquarters he was leaving his patrol car to check a possible vice violation. At about the time of the so-called 'vice check' Van Wert Mullin testified he received a phone call from appellant in which appellant told Mullin he would be dropping by. Shortly thereafter appellant drove into the alley behind Mullin's house in a police car wearing his uniform. Mullin gave appellant $40 and went back into his house. Mullin's residence at 2008 Koehn Street, Indianapolis, was an area outside appellant's assigned district.
Of the $40 which Mullin gave to appellant, $20 was to go to appellant and $20 to another police officer. In exchange for the $20 appellant was to avoid harassing Tuffy Mitchell, his agents, customers, and pick-up men. This was compensation for appellant's services on behalf of Mitchell's syndicate for a four week period.
Mullin and appellant first met back in 1960 at the Pink Poodle lounge owned by Tuffy Mitchell. There was evidence Mitchell was present and introduced the two men. Appellant went to the Pink Poodle on that occasion with another police officer and their wives for some barbecue. When the festivities at the Pink Poodle were over the group went to Van Wert Mullin's home where they partook of a case of whiskey.
Appellant admitted to 'perhaps twelve or fifteen' conversations with Tuffy Mitchell prior to the Pink Poodle meeting in 1960 and that thereafter he had his conversations with Mullin. Appellant stated he had met with Mullin on more occasions than he could remember and attempted to explain the meetings with Mullin by saying they involved conversations about athletics and current events and were for the purpose of cultivating Mullin as an 'informer.'
At the trial appellant claimed he had accomplished three misdemeanor arrests because of information he obtained from Mullin; but, when appellant testified before the grand jury shortly before he was indicted, he stated he made no arrests, as a result of the information furnished by Mullin. Although appellant described the cultivation of informers as one of his standard police methods he admitted he never attempted to cultivate any informers with respect to the Mitchell syndicate. Appellant admitted being at Mullin's home between two and four times in the six months immediately prior to May 29, 1963.
On June 1, 1963, Mullin made a routine accounting of the week's expenditures to Tuffy Mitchell. The accounting included a tape record of the bribe transactions which had occurred the previous week. On June 2, 1963, the Intelligence Division of the Internal Revenue Service empowered with search warrants made a raid on Mitchell's home and found much gambling paraphernalia. While such officers of the Revenue Service were searching Mitchell they found in his wallet the accounting tape Mullin had given him the previous day. Upon this tape appeared appellant's name and that of other policemen and opposite each name the amount of money each person was allegedly paid.
Appellant by his own evidence had been able to make a large number of numbers arrests during the early years of his career which began in 1947, and prior to 1960 had subjected Van Wert Mullin to considerable harassment. But since that time there had been a great lull in appellant's anti-gambling activities. During the five months immediately prior to the raid on Mitchell's home appellant was on active duty in a highcrime neighborhood and made numerous other arrests but made no numbers arrests. However, after being informed by Van Wert Mullin that his name was on the accounting tape seized by the federal agents in their raid, appellant tended to his duties with new-found vigor, and during the three months immediately preceding his indictment he made five numbers arrests.
A natural deduction from this evidence was that appellant had something to offer in exchange for the money he was receiving from the Mitchell syndicate. His annual payments totalled approximately $240, and one arrest of a Mitchell employee could easily have accounted for an equivalent expense.
Appellant's counsel has argued that the evidence was insufficient to sustain the jury's verdict of guilty in that there was no proper, competent evidence as to the purpose of the purported payment of money to appellant. Mullin testified that in exchange for the $20 payment appellant was to avoid harassing Tuffy Mitchell, his agents, customers, and pick-up men. The evidence showed that the harassment prior to 1960 of the Mitchell syndicate by appellant subsided after that time, and this was the same period when by appellant's admission he began his associations and conversations with Mitchell's chief lieutenant, Mullin. We are unable to find supporting evidence that appellant did this to cultivate Mullin as an 'informer', as appellant testified. On the contrary there is evidence sustaining the contrary inference that the payments were to reward appellant for overlooking law violations and for failing to harass and make arrests for the syndicate's huge numbers and gambling operation. The...
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