Mahoney v. State

Citation245 Ind. 581,3 Ind.Dec. 750,201 N.E.2d 271
Decision Date24 September 1964
Docket NumberNo. 30333,30333
PartiesJoe MAHONEY and Wilbur Wayne Wright, Appellants, v. STATE of Indiana dnd Donald E. Wright, Appellees.
CourtSupreme Court of Indiana

John M. Heeter, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from a judgment of the Marion Criminal Court, Division One, of Marion County, Indiana, dated August 9, 1962, wherein appellants were convicted of the crime of robbery. On their plea of not guilty, a trial was held before a jury which returned a verdict against them finding them guilty as charged in the indictment. (A directed verdict of not guilty for the appellants' co-defendant, Donald E. Wright, named as a party appellee herein pursuant to the Court's Instruction No. 21, was returned by the jury.) Appellants were sentenced to the Indiana State Reformatory for a period of not less than ten years nor more than twenty-five years and disfranchised during prison years. A motion for new trial was filed which was overruled. This appeal followed. The assignment of errors is based upon the ground that the court erred in overruling the motion for new trial.

The motion for new trial sets forth three specifications of error: (1) An error of law occurring at the trial; (2) that the verdict of the jury is contrary to law; (3) that the verdict of the jury is not sustained by sufficient evidence. Specifications 2 and 3 are expressly waived by appellants and so present no question. Therefore, we shall consider only specification numbered one as argued by appellants in their brief. This reads as follows:

'1. Error of law occurring at the trial, in this, that the Court overruled the defendants' motion, made at the conclusion of the testimony of Walter Earl Barlow, a witness for the State during the State's presentation of its case-in-chief, said witness having testified on direct examination that he was robbed by these two defendants, on cross- examination that he did not testify before the Grand Jury, nor at any time prior to trial while under oath, and on re-direct examination that he had testified in the courthouse before a reporter and some people sitting around a table, the said motion being, in substance, that, in view of the witness's testimony at the trial, the Court order the State to produce a transcript of said witness's testimony before the Grand Jury, to the Court for examination by the Court for the purpose of determining whether there were discrepancies, or, in the alternative, that the State represent to the Court, either, that the said witness did not testify before the Grand Jury, or that there is no transcript of his testimony.'

Appellants contend that the trial court erred in overruling their motion asking that the State submit to the trial court for its examination a transcript of the testimony of the prosecuting witness, Walter Earl Barlow, before the Grand Jury, in order to determine whether there were any discrepancies between his testimony there, if any, and his testimony during the trial of the case.

Statutes pertaining to the make-up and operation of the Grand Jury are cited. Burns' Ind.Stat., Sec. 9-810, 1956 Replacement (Supp.), and Burns' Ind.Stat., Sec. 9-817, 1956 Replacement. The latter statute declares that a member of the Grand Jury may be required by any court to disclose testimony of a witness examined before it to ascertain whether it is consistent with testimony given by the witness before the court. Appellants did not call for a member of the Grand Jury to testify as they had the right to do. State v. Brumfiel (1919), 188 Ind. 584, 125 N.E. 40; Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157; Burdick v. Hunt et al. (1873), 43 Ind. 381. They argue, simply, that the 'progressive rule' is to permit an accused person to procure a stenographic record of testimony taken before the Grand Jury. In so doing, they recognize authority cited by the State as upholding the Judge's ruling on the basis that, in Indiana, Grand Jury records are secret. This is ...

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6 cases
  • Antrobus v. State, 169S6
    • United States
    • Indiana Supreme Court
    • February 3, 1970
    ...basic case adhering to the rule of non-disclosure of such statements and the reasoning there was recently adopted in Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. Several reasons were offered to support the rule of non-disclosure but the only one which carries any weight at all is ......
  • Blackburn v. State
    • United States
    • Indiana Supreme Court
    • January 24, 1973
    ...(Burns' Ind.Stat.Ann. § 9--817 (1956 Repl.)) Dinning v. State (1971), Ind., 269 N.E.2d 371, 373; See also Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. In this case, there is no indication on the record cited to us that Appellant attempted to employ this device as a means of obtain......
  • DeVaney v. State, 671S192
    • United States
    • Indiana Supreme Court
    • November 10, 1972
    ...However, this does not preclude the defendant from calling a grand juror as a witness; see Dinning v. State, supra; Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. It is also true that a grand jury indictment returned in open court and duly endorsed by the foreman is evidence that a ......
  • Hinojosa v. State
    • United States
    • Indiana Supreme Court
    • January 15, 2003
    ...5, 291 N.E.2d 686 (1973), cert. denied, Blackburn v. Indiana, 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152 (1973); Mahoney v. State, 245 Ind. 581, 201 N.E.2d 271 (1964), overruled on other grounds by Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873 (Ind.1970). In fact, it is a criminal offens......
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