Jordan v. State
| Decision Date | 30 March 1953 |
| Docket Number | No. 28894,28894 |
| Parties | JORDAN v. STATE. |
| Court | Indiana Supreme Court |
T. Ernest Maholm, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., J. Emmett McManamon, former Atty. Gen., William T. McClain, and John Ready O'Connor, Deputy Attys. Gen., for appellee.
Appellant was indicted by the Marion County Grand July under Acts 1905, ch. 169, § 350, p. 584, being § 10-3404, Burns' 1942 Replacement, for murder in the second degree. He was tried by jury, found guilty of manslaughter and sentenced to the Indiana State Prison for a term of not less than two years, nor more than twenty-one years.
Two errors are assigned as follows:
'1. That the court erred in causing the bailiff in charge of the jury, to go to the jury room, while jury was deliberating upon a verdict, and deliver to said jurors, a twenty (20) foot string to be used in measurement comparisons, in their deliberations and without consent or knowledge of appellant, and appellant was thereby prejudiced in his constitutional rights, as secured to him by Art. 1, Sec. 13, of the Constitution of the state of Indiana, and the 14th. Amendment to the Constitution of the United States of America.
The motion for a new trial contains fourteen separate specifications or grounds therefor. Specifications numbered 2, 3, 8, 9, 10, 11 and 12 are not discussed in appellant's brief as required by rule 2-17(e) and (f) of this court and are, therefore, deemed to be waived. Harrison v. State, 1952, 231 Ind. 147, 106 N.E.2d 912; Sisk v. State, 1953, Ind.Sup., 110 N.E.2d 627.
Specification No. 1 of the motion for a new trial is the same as assigned error number 1.
There is no evidence in the record to show for what purpose the string, which appellant alleges in his motion for a new trial and asserts in the independently assigned error No. 1, was used by the jury. Nor is there evidence in the record, by a special bill of exceptions or otherwise, to show such piece of string was in fact delivered to the jury or used by them in arriving at a verdict. This court cannot assume from the mere statements of appellant's counsel that the jury sought and used evidence obtained outside of open court and outside the presence of the defendant (appellant) in considering his guilt or innocence.
The action of the trial court in directing the bailiff in charge to deliver to the jury a piece of string twenty feet long, to be available as error for consideration by this court, must appear by the record. A statement of such action in the motion for a new trial, or as an independent assignment of error, is not sufficient. Hence, no question pertaining to this alleged error is presented.
Gerking v. Johnson, 1942, 220 Ind. 501, 503, 44 N.E.2d 90; Illinois Cent. R. Co. v. Cheek, 1899, 152 Ind. 663, 679, 53 N.E. 641; Highfill v. Monk, 1881, 81 Ind. 203, 206.
Specification 4 asserts that the court erred in permitting Joe Wright, a witness for the state, to answer the following question: 'State in your opinion if this is the gun that was in Porter Jordan's hand at the time it was fired.'
The record fails to show that the witness answered the question. There can be no error in the admission of testimony when none is given.
Specifications 5, 6, and 7 assert error in permitting Harry Pierson, a character witness, who testified to the good reputation of the appellant for peace and quietude, to answer over appellant's objection, the following questions:
1. Let us assume if it should be a fact, that the defendant has been arrested and convicted several times for other crimes, would that fact change your opinion?
2. Let us assume that the defendant was arrested and convicted in 1945 for assault and battery, would that change your opinion as to his reputation for peace and quietude?
3. Let us assume that the defendant in March, 1950, was arrested and convicted for being drunk in a public place, and in September, 1950, was arrested and convicted of the violation of the Fire Arms Act, would that change your opinion as to his reputation for peace ond quietude?
When a defendant tenders his supposed good character in evidence, he thereby invites scrutiny and disclosure of specific instances of his misconduct to depreciate the weight of the testimony of his character witness, although the answers elicited may incidentally impute to him other guilt. The above questions were put...
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...of his character witness, although the answers elicited may incidentally impute to him other guilt.’ " Id. (quoting Jordan v. State, 232 Ind. 265, 110 N.E.2d 751, 753 (1953) ). Lineback explained, "[a]lthough juvenile matters are secret and the results thereof not open to public scrutiny as......
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