Hollars v. State, 970S217
| Decision Date | 21 August 1972 |
| Docket Number | No. 970S217,970S217 |
| Citation | 259 Ind. 229,286 N.E.2d 166 |
| Parties | Donald R. HOLLARS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
C. Richard Marshall, Goltra, Cline & King, Columbus, for appellant.
Theodore L. Sendak, Atty. Gen., Robert A. Smith, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was convicted in a trial by jury of the crime of Forgery under 1956 Repl. Burns Ind.Stat.Ann. § 10--2102, Acts of 1905, Ch. 169, § 676, IC 1971, 35--1--124--1. He was sentenced to imprisonment for not less than two nor more than fourteen years and fined $10.00, upon a verdict which found him guilty of the offense of forgery, fixed a fine of $10.00 but made no provision for imprisonment and did not find his age. His appeal presents the following alleged errors for determination:
1. Admission into evidence of a sample of the defendant's handwriting, over his objection that it had been given without benefit of warnings concerning his constitutional rights.
2. Form of verdict, in that it (a) did not find the defendant's age, (b) fixed a fine, and (c) in the alternative, fixed only a fine of $10.00 and did not provide for imprisonment.
3. Denial of motion for directed verdict which was predicated upon the grounds that the State failed to comply with the requirements of 1956 Repl. Burns Ind.Stat.Ann. § 9--1606, Acts of 1905, Ch. 169, § 238, IC 1971 35--1--31--4, requiring that the fact of the genuineness of written instruments, except in certain cases be proved by at least three witnesses.
4. Misconduct of the prosecuting attorney in asking a State's witness, upon re-direct examination, if he knew why the defendant severed his employment with the concern by which he was employed at the time the offense was committed and in subsequently asking the defendant, upon cross examination, what had occasioned him to leave such employment.
5. Unconstitutionality of the forgery statute as being in violation of the cruel and unusual punishment proscriptions of the state and federal constitutions.
The defendant was employed as co-manager of a food market. A customer, Mrs. Fiesbeck, inadvertently left her checkbook at the store 'check out' counter operated by a Mrs. Gordon, who promptly delivered it to the defendant. Approximately one week later, Mr. and Mrs. Fiesbeck received their monthly bank statement and cancelled checks relative to their joint account, which was the account pertaining to the misplaced checkbook. While examining the statement and cancelled checks, they discovered a cancelled check made payable to the food market for $60.00 purporting to have been signed by Mr. Fiesbeck but which neither of them had either signed or authorized. In response to the request of the police that all employees of the store give handwriting samples for their assistance in detecting the forger, the defendant voluntarily gave a sample of his handwriting, and it was from this sample that a handwriting expert identified the defendant as the one who forged the check. The officer taking the sample did not advise the defendant of his constitutional rights against self incrimination nor of his right to counsel prior to taking the sample, although he did advise the defendant that all employees of the store were under suspicion and that giving the sample was voluntary.
(1) The 5th Amendment privilege against self incrimination has been held to reach only compulsion of the accused's communications and responses which are also communications, that is evidence in the form of testimony or that which is testimonial in character. It does not shield against compulsory submission to tests that are merely physical or produce evidence that is only physical in nature, such as fingerprints, measurements, voice or handwriting exemplars, or physical characteristics or abilities. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Heichelbech v. State (1972), Ind., 281 N.E.2d 102.
With reference to the 6th Amendment right to counsel claim, it was held in Gilbert v. California (supra) that although the appellant was in custody, the taking of the handwriting exemplar was not a 'critical' stage of the criminal proceedings entitling him to counsel in view of the minimal risk that the absence of counsel might derogate from his right to a fair trial.
(2) That the jury failed to find the age of the defendant in so way affects the validity of the verdict of guilty. The purpose of 1956 Repl. Burns Ind.Stat.Ann. § 9--1820, Acts 1927, Ch. 200, § 2, IC 1971, 35--8--2--2, which provides for the jury to find the age of defendants found guilty of felony, is to enable the court to sentence the defendant to the proper institution. The sentencing was to the Indiana Reformatory which, under the statutes and the uncontroverted evidence of the defendant's age, is the proper institution. Nor is the defendant claiming that he has been harmed in any way by the error. Clearly, the error was harmless. Watson v. State (1957), 236 Ind. 329, 140 N.E.2d 109; Capps v. State (1961), 242 Ind. 165, 177 N.E.2d 457.
Further, the instruction regarding the form of verdict was given without objection and made no provision for a finding as to the age.
Relying upon 1956 Repl. Burns Ind.Stat.Ann. § 9--1819, Acts of 1927, Ch. 200, § 1, IC 1971, 35--8--2--1, the defendant challenges the right of the jury to fix a fine. The statute is as follows:
'Verdict-Assessment of fine or punishment.--When the defendant is found guilty the jury, except in the cases provided for, in the next three (two) sections, must state, in the verdict, the amount of fine and the punishment to be inflicted; where the plea is guilty, or the trial is by the court, the court, subject to the same exception, shall assess the amount of find and fix the punishment to be inflicted.'
Apparently, the defendant misconstrues the statute to mean that none of the provisions of § 9--1819 will be in effect if the case falls within the purview of either § 9--1820 or $9--1821, IC 1971, 35--8--2--3. However, these last two sections, generally known as the 'indeterminate sentences' act', are concerned with but two things i.e. making indeterminate, in certain cases, sentences that would otherwise be determinate and in fixing the institutions at which sentences will be served. There is nothing in either section providing for the fixing of fines, or in any way relating thereto. From this, it is apparent that these two sections are intended to limit only the right of the jury (and of the court in cases tried before the court) to fix the term of imprisonment. They do not operate to take away such rights and duties as the jury may otherwise have to assess fines. Defendant has cited us to Powell v. State (1968), 250 Ind. 663, 237 N.E.2d 95 upon this point. In that case, we held only that the punishment was to be fixed by the court and not by the jury. It will be noted that the question of a fine was not involved, as none was levied. Also, both the words fine and punishment are used conjunctively in the statute, and it is obvious that within the context of the act, the word punishment refers to imprisonment.
Defendant maintains, in the alternative to his proposition last above disposed of, that if the jury verdict is allowed to stand, the only penalty he is subject to is the $10.00 fine assessed. This presupposes that the statute requires that either the jury or the court fix the entire penalty, which clearly is not the effect of the statutes. The fine lies within the discretion of the jury and is to be determined by it. The term of imprisonment is fixed by statute. Neither the court nor the jury has any discretion in the matter, but the court must pronounce it.
To further dispose of the defendant's allegations of error with respect to the verdict, we must point out the following from Powell v. State (supra):
...
To continue reading
Request your trial
-
Johnson v. State
...attack the statutes imposing such penalties but merely their application. We previously wrote on this issue in Hollars v. State, (1972) 259 Ind. 229, 236, 286 N.E.2d 166, 170 (emphasis "Generally, the constitutional prohibitions against cruel and unusual punishments, however, are proscripti......
-
Jefferson v. State
...... Despite this general rule, however, juries were also authorized to determine an appropriate fine in all cases (Hollars v. State (1972), 259 Ind. 229, 286 N.E.2d 166) and the judge's role was generally limited to imposing the legislatively prescribed indeterminate ......
-
Smith v. Fair
...identification exceptions were recognized in state courts. See, e. g., Heichelbech v. State, 281 N.E.2d 102 (Ind. 1972); Hollars v. State, 286 N.E.2d 166 (Ind.1972); Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970); State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (1971); McCray v. State,......
-
Pearson v. State, 681S156
...submission to purely physical tests such as fingerprinting, body measurements, handwriting, and photographing. Hollars v. State, (1972) 259 Ind. 229, 286 N.E.2d 166. We find no error in the admission of these Defendant next contends that the trial court erred in refusing to give four of his......