Knopp v. State

• Decision Date: 17 June 1954
• Docket Number: No. 29152,29152
• Citation: 233 Ind. 435,120 N.E.2d 268
• Parties: KNOPP v. STATE.
• Court: Indiana Supreme Court

Page 268

120 N.E.2d 268

233 Ind. 435

KNOPP v. STATE.

No. 29152.

Supreme Court of Indiana.

June 17, 1954.

Mann, Stohr & Mann, Hansford C. Mann, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

GILKISON, Judge.

In the trial court appellant was charged by affidavit with obtaining money under false pretense. Omitting formal parts and the bank check which is set out therein, the affidavit is as follows:

'Ethel Jane Richardson, being duly sworn upon her oath says that William Knopp, late of said County, on or about the 26th. day of January, A.D., 1951, at said County and State aforesaid, did then and there unlawfully and feloniously, designedly and with intent to cheat and defraud Ethel Jane Richardson and for the purpose of obtaining the signature of the said Ethel Jane Richardson to a certain written instrument for the payment of money, which written instrument is, and was in the words and figures, to-wit: (Bank check) The said William Knopp did then and there unlawfully, feloniously, falsely and designedly pretend and represent to her, the said Ethel Jane Richardson, that he, the said William Knopp was the owner of a certain building in the City of Terre Haute, Vigo County, Indiana, known and numbered as 16 North Fourteenth and one half street in said City, and would sell said building to the said Ethel Jane Richardson for six hundred dollars ($600.00), whereas in truth and in fact the said William Knopp did not own said building, and that the pretenses made were false; that by means of said false pretenses aforesaid, and believing and relying on the same to be true, and being deceived thereby, and having no means of learning the facts to the contrary, she, the said Ethel Jane Richardson did affix her signature to the written instrument aforesaid, and did execute and deliver the said written instrument to the said William Knopp; and the said William Knopp did receive as the proceeds of said written instrument the sum of six hundred dollars ($600.00) in money, the property of the said Ethel Jane Richardson, to the injury of the said Ethel Jane Richardson, all being then and there contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

The affidavit purports to allege an offence under Sec. 10-2103, Burns' 1942 Repl. which so far as material, is as follows:

'Whoever, with intent to defraud another, designedly, by * * * any false pretense, obtains the signature of any person * * * to any written instrument, or obtains from any person * * * money, or the transfer of any bond, bill, receipt, promissory note, draft or check, or thing of value * * * shall, on conviction, be imprisoned in the state prison not less than one (1) year nor more than seven (7) years, and fined not less than ten dollars ($10.00) nor more than one thousand dollars ($1000.00), or, at the discretion of the court or jury trying the cause, shall, upon conviction thereof, be imprisoned in the county jail not more than six (6) months nor less than ten (10) days, and fined not more than fifty dollars ($50.00) nor less than ten dollars ($10.00).'

The cause was put at issue by plea of not guilty. Trial by the judge without a jury resulted in a finding and judgment of guilty as charged, sentence to 180 days on the Indiana State Farm and fined $50 and adjudged to pay the costs.

A motion for new trial for causes (1) that the decision is not sustained by sufficient evidence, (2) the decision is contrary to law, (3, 4 and 5) error in overruling appellant's several objections to questions asked of witnesses by the State. In each instance the question is properly presented, and (6) error in everruling appellant's motion to grant a mistrial because of improper argument by the prosecuting attorney. We shall discuss these alleged errors in reverse order.

It is shown by the record that appellant did not take the witness stand. In his opening argument the prosecutor stated as follows:

'It is no wonder this man did not take the witness-stand. He was afraid to take the witness-stand, because he knew what I would do to him on cross examination.'

Defendant immediately moved the court to declare a mistrial because of the prosecutor's prejudicial references to defendant's failure to take the witness stand in his own defense. The court promptly overruled the motion without comment. This was error. Cl. 4, Sec. 9-1603, Burns' 1942 Repl.; Long v. State, 1877, 56 Ind. 182, 186; Showalter v. State, 1882, 84 Ind. 562, 564.

The record shows that one Harry Adams had sold the house in question to appellant. While Mr. Adams was on the witness stand as a witness for the state, among many questions, the prosecutor asked him as follows:

'Q. In that contract he paid you for the house, and do you recall when it was to be moved--what the time limit was?'

In a proper manner appellant objected to the question, for the reasons as follows:

'Defendant objects to the question because it pertains to the provisions of a contract Mr. Knopp had with him; he is not charged with defrauding Mr. Adams; Mr. Adams testified he sold him the house and he paid for it; the other provisions of the contract certainly have nothing to do with the charge here, which charge is that the man sold a woman a house on the 24th which he didn't own with intent to defraud her of the money she paid for the house.'

The court overruled the objection.

'A. It was to be removed within 32 days.'

This was error. The objection should have been sustained. 20 Am.Jur.--Evidence Nos. 247, 248, pp. 240 [233 Ind. 439] to 243. Farris v. People, 1889, 129 Ill. 521, 21 N.E. 821, 4 L.R.A. 582, 16 Am.St.Rep. 283.

The prosecutor further asked Mr. Adams:

'Q. Mr. Adams, did William Knopp remove the house being No. 16 North 14 1/2 Street, that he purchased of you on the 27th day of January, 1951?'

Appellant immediately objected thus:

'To which we object for the reason it has nothing to do with the charge in this case and is an attempt to merely prejudice the court in one way or another by dragging into the case other controlling factors which have nothing to do with the charge of selling the house to a woman with intent to...