Johnson v. State

• Decision Date: 04 June 1971
• Docket Number: No. 670S138,670S138
• Citation: 256 Ind. 497,269 N.E.2d 879,25 Ind.Dec. 661
• Parties: Gerald Lee JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 879

269 N.E.2d 879

256 Ind. 497

Gerald Lee JOHNSON, Appellant, v.STATE of Indiana, Appellee.

No. 670S138.

Supreme Court of Indiana.

June 4, 1971.

Forrest Bowman, Jr., Indianapolis, Chiappetta & Brumfield, Muncie, for appellant.

Theodore L. Sendak, Atty. Gen., by J. Frank Hanley, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged by affidavit with the carrying of a pistol without a license in violation of the statute as found in BurnsInd.Stat., 1956 Repl., § 10--4736, I.C.1971, 35--23--4--3.Trial by jury resulted in a verdict of guilty.Appellant was sentenced to the Indiana State Prison for a period of six years.

The record discloses the following facts:

Donna Greer, her husband, and another couple were driving on the evening of October 5, 1968, when Mrs. Greer saw the appellant in his car.She stated she recognized the appellant as the person who had earlier that year exposed himself and made obscene remarks to her.She told her husband who the appellant was and they began to follow him.When the appellant stopped his car, Mr. Greer stopped his car, got out and approached the appellant, who was also out of his car.As Mr. Greer approached the appellant, he told him he wanted to talk to him.He said as he approached the appellant, he saw a flash and heard a noise that sounded like a small caliber pistol being fired.Thinking it was only a blank gun, he continued to approach the appellant.Greer and the appellant began to scuffle and were so engaged when police officers arrived on the scene.The officers informed the two men they had a report of a gunshot and asked the men if one of them had a gun.Whereupon the appellant surrendered his gun to the police officers.The officers asked the appellant if he had a permit to carry the gun.Appellant replied that he did not have a permit.The officers then placed the appellant under arrest for carrying the gun without a permit.

Appellant was taken to police headquarters where he was questioned concerning his address, age, date of birth, place of birth and place of employment.They also checked his physical description with the description on his driver's license.

Herschell Green, supervisor of records for the Indiana State Police, testified that his office keeps records of the applications for pistol permits.He stated that he had searched his records and had determined that no permit had been issued to the appellant.

John Carrick, a police officer of the city of Muncie, testified that he is in charge of records, including gun permit applications, and that no application had ever been submitted by the appelant, and that he had no knowledge of any permit ever being issued to the appellant.

Harry Howard, Sheriff of Delaware County, testified that the appellant had never made an application for a pistol permit with his office.

Appellant first contends there is insufficient evidence to sustain the conviction.He bases this contention on a claim that his own admission that he had no permit to carry the gun was not legally admissible in evidence, and that the testimony of officers who stated he had made no application for a permit was nothing but hearsay and conclusions of the witnesses.We find no merit in either argument.

It is appellant's position that when the officers arrived at the scene, the appellant should have been given his constitutional warnings as set out in Escobedo v. Ill.(1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977andMiranda v. Ariz.(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, before the police officers asked him if he had a gun and if he had a permit to carry a gun.The constitutional warnings as set out in Escobedo and Miranda are required prior to custodial interrogation which results in statements either incriminating or exculpatory by the accused.These requirements are not applicable in a situation such as the case at bar where the police officers arrive at the scene of a disturbance and are in the process of making an investigation as to what in fact has occurred.During this investigative period it is not necessary for the officers to advise everyone to whom they speak of these constitutional rights.Stallings v. State (1970), Ind., 264 N.E.2d 618, 24 Ind.Dec. 26.

In a situation such as the case at bar when the police officers have reason to believe a weapon is in the possession of one of the persons present, logic dictates the first order of business to be the location of the weapon and the securing of the same by the police officers.This certainly is no time for the police officer to stop and conduct a course in constitutional law for the benefit of all present.

In the case at barthe appellant voluntarily surrendered the gun when asked by the police officers if he had one.The officers were not required to search his person to obtain the gun.When the appellant surrendered the gun to the officers upon their request, the officer rightfully and logically asked the appellant if he had a permit to carry the gun.This again did not fall within the Miranda rule requiring the officer to advise the appellant of his constitutional rights before asking the question.In situations where licenses or permits are required, such as a driver's license, a hunting and fishing license, or as in this case a permit to carry a pistol, any peace officer observing a person engaged in the activity for which a license or permit is required, may, when called upon to investigate such activity, ask the person in question if he has the required license or permit without first giving him the so-called 'Miranda warnings.'Such an inquiry by the officer is proper within the category of reasonable investigation.We hold that it is not the type of custodial interrogation which is prohibited without proper warning to the accused.

The Supreme Court of the United States stated in Miranda, supra, at pp. 477 and 478, 86 S.Ct. at 1629.

'General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding.It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible.Confessions remain a proper element in law enforcement.Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.'

We therefore, hold the trial court did not err in permitting the police officers to testify that the appellant voluntarily surrendered his pistol to them at the scene of the altercation, and that the appellant stated at that time that he did not have a permit to carry the pistol.

As to the questions asked of the appellant after he was taken to the police station, these questions did not constitute an interrogation concerning any criminal activity.These questions were merely personal questions concerning appellant's identity.We hold that they in no way violated the rule set forth in Miranda, supra.

Appellant also contends it was error for the trial court to permit the various police officers to testify that they had searched their records and that the appellant had made no application for a permit with their various departments.In the first place, this Court has previously held that where the alleged crime is the possession of an article which under certain circumstances may be lawful, but is alleged in the particular case to be unlawful, it is not necessary for the State to negate the exceptions by stating and proving that the appellant does not come within the same.Stanley v. State (1969), Ind., 245 N.E.2d 149, 16 Ind.Dec. 662.It was however, proper for the State to present the testimony of the various officers who had in their custody records which would record any application the appellant might have made to their respective departments for a permit to...