Hestand v. State, 31130

CourtSupreme Court of Indiana
Citation273 N.E.2d 282,257 Ind. 191
Docket NumberNo. 31130,31130
PartiesGeorge Edward HESTAND, Appellant, v. STATE of Indiana, Appellee.
Decision Date28 September 1971

Tony Foster, Bingham, Summers, Welsh & Spilman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee.

PRENTICE, Judge.

Defendant was convicted by jury of the offense of inflicting physical injury with a dangerous weapon while engaged in attempted robbery, in violation of the Acts of 1941, Ch. 148, § 6, 1956 Repl. Burns' Ind.Stat.Ann. § 10--4101, IC 1971, 35--13--4--6, and sentenced to life imprisonment.

The defendant has previously petitioned for oral argument herein. Said petition was granted and argument set but later postponed indefinitely. Subsequently, leave for the same having been granted, a supplemental transcript and amended assignment of errors and briefs were received, as well as Appellant's citation of additional authorities. All matters presented have been reviewed and considered, and we have concluded that the evidence, issues and authorities have been thoroughly presented and that oral arguments would not be beneficial. The order granting oral arguments is, therefore, hereby set aside and said motion for oral arguments denied.

Defendant was charged by indictment, along with two others and tried jointly with one of the others, to-wit: Burford Ray Lipps, whose appeal to this Court has been previously determined and is reported in Ind., 258 N.E.2d 622. The evidence presented at the trial, viewed in favor of the judgment, disclosed that the defendant and several other persons, including Lipps, Jarel Haines and Thomas Pierce, plotted to commit an armed robbery at Daymon's Lounge in Indianapolis. They undertook the commission of the crime by driving to the location where three of them entered the premises and announced their intentions but were thwarted by the presence of Police Officers Pickett and Van Arsdale, who happened to be present and intervened. A shooting confrontation resulted, in the course of which Officer Van Arsdale was injured and Pierce was killed. The bandits who entered the lounge were masked, and after the shooting, the two surviving ones escaped unidentified.

While awaiting trial and confined to jail, the defendant and Lipps summoned a news reporter, Richard Johnson, for a conference. It was arranged, and Defendant and Lipps confessed their guilt to him. Johnson, over objections of the defendant and Lipps, testified as to the confession. The admission of this testimony is one of the purported errors assigned. The identical question was fully considered and decided against Defendant's position in the Lipps' appeal, supra, and it would serve no useful purpose to here discuss it further. Suffice to say, the statute granting immunity to a news reporter (Acts of 1941, Ch. 44, § 1, p. 128, Acts of 1949, Ch. 201, § 1, p. 673, 1968 Repl. Burns' Ind.Stat.Ann. § 2--1733, IC 1971, 34--3--5--1) creates a right personal to the reporter and which only he can invoke. It cannot be invoked by the person who communicated to the newsman to prevent him from testifying.

Defendant contends that error was committed by the trial court in refusing to receive and hear evidence, outside the presence and hearing of the jury, prior to the submission of the testimony of newsman Johnson relating to the confession, for the purpose of determining the admissibility of such evidence. The record discloses that prior to the receiving of Johnson's testimony, the court did confer with the witness and counsel, in the absence of the jury, concerning the admissibility of such evidence and determined that it was admissible. Assuming, arguendo that such a hearing would have substantiated all of Defendant's claims concerning the circumstances surrounding the confession, nevertheless there was no privilege running in favor of him, and no reason for excluding the evidence. The evidence having been held to be competent, there can be no error in having refused the hearing which could have only resulted in the same ruling. The ruling in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 requiring the shielding of a suspect from coercive practices associated with 'in custody' police interrogations, was held not to apply to protect one against his own voluntary statements made to a private citizen in an interview requested by the party and conducted outside the presence of the police; (Lipps v. State, supra) and there is nothing in the record to indicate that Johnson was acting as an agent for the...

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8 cases
  • Caldero v. Tribune Pub. Co., 11921
    • United States
    • Idaho Supreme Court
    • March 4, 1977
    ...dismissed, 32 N.Y.2d 764, 344 N.Y.S.2d 955, 298 N.E.2d 118; People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299. See also Hestand v. State, 257 Ind. 191, 273 N.E.2d 282 (1971). One of the more recent developments in an adjunct area is the case of Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975). ......
  • Ernst & Ernst v. Underwriters Nat. Assur. Co., 2-977A365
    • United States
    • Indiana Appellate Court
    • October 23, 1978
    ...The Indiana newsman's privilege is personal to the newsman. This was recognized by the Supreme Court of Indiana in Hestand v. State (1971), 257 Ind. 191, 273 N.E.2d 282 and Lipps v. State (1970), 254 Ind. 141, 258 N.E.2d 622. In Branzburg v. Hayes (1972), 408 U.S. 665, 695, 726, 92 S.Ct. 26......
  • Jamerson v. Anderson Newspapers, Inc.
    • United States
    • Indiana Appellate Court
    • November 1, 1984
    ...have, as of yet, pared down this absolute privilege except to state that it is personal to the newsman. See, e.g., Hestand v. State, (1971) 257 Ind. 191, 273 N.E.2d 282. Jamerson also alleges that the proper approach to the "problem" created by the absolute privilege, and the method which t......
  • In re Inc.
    • United States
    • Indiana Appellate Court
    • February 21, 2012
    ...on other grounds by Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); see also Hestand v. State, 257 Ind. 191, 273 N.E.2d 282, 283 (1971) (listing legislative history of Indiana's shield-law statute up to that point, starting in 1941). Before the 1973 amendm......
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