Lincoln v. State

Decision Date22 December 1921
Docket Number23,551
Citation133 N.E. 351,191 Ind. 426
PartiesLincoln v. State of Indiana
CourtIndiana Supreme Court

From Randolph Circuit Court; E. E. McGriff, Special Judge.

Prosecution by the State of Indiana against Calvin Lincoln. From a judgment of conviction, the defendant appeals.

Reversed.

Bales & Macy, for appellant.

Ele Stansbury, Attorney-General, and Remster A. Bingham, for the state.

Ewbank C. J. Myers, J., absent.

OPINION

Ewbank, C. J.

The appellant was convicted on a charge of conspiracy to commit the crime of arson by burning a store building in the town of Ridgeville, Indiana. He was indicted with three other persons, but was tried separately. The persons indicted with him were Enoch L. Pierson, Elisha Roberts and Frederick Drake.

The only error relied on is overruling appellant's motion for a new trial. A bill of exceptions recites that in the opening statement to the jury counsel for the state asserted "that two of these codefendants have been heretofore convicted in this court;" that in the examination of a witness he asked whether or not the witness instituted a certain suit "before or since the conviction of two or three of these defendants," or "before or after he learned that two of these defendants were guilty of burning this store;" that he asked another witness if the man he saw coming out of the burning building was "the same man who was convicted in this court;" and asked another witness if a designated codefendant of appellant was "the same who was sentenced to prison for two to fourteen years as the result of the verdict rendered in his trial of the same case;" and asked another witness if she was the witness of that name "that testified in the case of State v. Enoch L Pierson, who was convicted in this court last November;" and asked another witness if Elisha Roberts was "the same man who was convicted in this court by a jury;" that counsel for the state not only asked Roberts, on cross-examination, if he had been convicted of a felony, but also asked him if he was the same man who was "found guilty by the jury on the 29th day of March 1918, as one of the codefendants in this case," and "was sentenced in this court on the first day of this month from two to fourteen years as the result of this verdict;" that after defendant's evidence had closed without the examination of Pierson, counsel for the state called him to the witness stand, and except for asking his name and residence, put to him only the question whether he was "one of the co-defendants here who was on the third day of December, 1917, convicted of the crime of conspiracy to commit a felony as one of the defendants;" that in the closing argument counsel for the state, referring to the codefendant Roberts, and his answer on cross-examination that he had been convicted, said: "Roberts came on the witness stand and told you he had been convicted. I guess that is evidence." And referring to the answer of a witness that he knew Frederick Drake "for about a year before he committed suicide," counsel for the state said: "What became of Frederick Drake? Frederick Drake's suicide is shown here. Dr. Shank told you what became of him and when it happened * * * Why did Frederick Drake take that course of action if he was an innocent man." The contention of the state was that appellant was in Ridgeville with his codefendant Roberts on the night of the fire. In closing the argument counsel for the state, referring to the trial in which Roberts had been convicted, said: "Who said Calvin Lincoln was there? * * * (a certain named witness) * * * and the jury that tried the former case said he was there."

As each of these statements was made the appellant objected, and each time moved to set aside the submission and discharge the jury. Several times the court "sustained the objection," and two or three times told the jury not to consider the matters then referred to, but he did not admonish counsel, who persisted in an apparent effort to impress the jury with the idea that appellant's codefendants were guilty, and therefore that he must also be guilty.

Such statements were improper. The fact that others indicted for the same offense had been found guilty was not...

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