Lamar v. State, No. 30347

• Docket Nº: No. 30347
• Citation: 245 Ind. 104, 195 N.E.2d 98
• Case Date: January 08, 1964
• Court: Supreme Court of Indiana

Page 98

195 N.E.2d 98 245 Ind. 104 Loyce L. LAMAR, Appellant,
v.
STATE of Indiana, Appellee. No. 30347. Supreme Court of Indiana. Jan. 8, 1964.
Rehearing Denied Feb. 26, 1964.

[245 Ind. 105]

Page 99

Robert S. McCain, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Frederick J. Graf, Deputy Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

Appellant was charged and convicted of the crime of sodomy. He here asserts the following three grounds as cause for appeal:

1) That his alibi was established by evidence beyond a reasonable doubt.

2) That the court erred in not requiring the prosecuting witness to submit to psychiatric examination by court-appointed physicians.

3) That the court erred in permitting the state to introduce evidence as to acts of sexual perversity by appellant with other boys, after appellant concluded his evidence; which evidence had included the testimony of several witnesses as to appellant's good reputation for morality in the community.

Appellant's first contention is without merit. The case was set for trial more than a month prior to June 5, 1962. However, appellant's notice of alibi was not filed, nor was notice thereof given to the prosecutor until May 28, 1962-just eight days prior to trial.

The alibi statute provides, in part:

'Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of [245 Ind. 106] alibi, the defendant shall, not less than ten days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense. * * *' Acts 1935, ch. 228, § 1, p. 1198 [§ 9-1631, Burns' 1956 Repl.]. [Emphasis added.]

'* * * At the trial, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney the defendant's original notice of alibi as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish an alibi. * * *' Acts 1935, ch. 228, § 3, p. 1198 [§ 9-1633, Burns' 1956 Repl.].

From the record it does not appear that the appellant made any attempt to make 'a showing of good cause for such failure by the defendant' to timely file his alibi notice. Under such circumstances the court might properly have excluded evidence offered by the defendant to establish an alibi. Instead, it appears from the record that at the commencement of the trial [June 5, 1962], the parties stipulated that the date of the alleged offense was August 2, 1961, without specifying any hour of the day. Under the above facts, it is not necessary that we attempt to reconcile the evidence regarding the exact time on the date when the alleged offense occurred, although it is our opinion that such a reconciliation is possible. It is sufficient that the evidence supports the fact that the offense was committed on August 2, 1961, the date stipulated by the parties.

Secondly, appellant asserts as error the fact that the trial court denied his petition to require Roger Sitcler to submit to a psychiatric examination by three qualified physicians, which asserted error was again raised during the course of the trial in the form of an objection[245 Ind. 107] to the admission of the testimony of the witness Roger Sitcler. In support of this petition, appellant asserted: (1) That the prosecuting witness was a minor, 15 years of age at the time of the trial; (2) that on numerous occasions he had changed his story with regard to the offense, and (3)

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that he was the sole witness who testified to the offense, as charged. Thus, from appellant's petition, objection, and argument, it is obvious that he is relying upon Burton v. State (1953), 232 Ind. 246, 111 N.E.2d 892, with its attendant criteria as his authority for his right to require a psychiatric examination of the prosecuting witness.

However, the Burton case, supra, is no longer authority on this proposition of law, relied upon by appellant, since it was expressly overruled in Wedmore v. State (1957), 237 Ind. 212, 221-222, 223-224, 143 N.E.2d 649, 653-654. In that case this court said:

'There is no statute in Indiana making provision for a psychiatric examination of a prosecuting witness in any case. Cf. Chesterfield v. State, 1924, 194 Ind. 282, 294, 141 N.E. 632; Cosilito v. State, 1926, 197 Ind. 419, 424, 151 N.E. 129.

'The question of stability and mental condition of...