Metzger v. State

• Decision Date: 10 March 1938
• Docket Number: 26916.
• Citation: 13 N.E.2d 519,214 Ind. 113
• Parties: METZGER v. STATE.
• Court: Indiana Supreme Court

13 N.E.2d 519

214 Ind. 113

METZGER v. STATE.

No. 26916.

Supreme Court of Indiana

March 10, 1938

Appeal from Kosciusko Circuit Court; Donald Vandeveer, Judge.

Herbert Hartman and White & Jones, all of Indianapolis, for appellant.

Omer Stokes Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for the State.

TREMAIN Judge.

The appellant was charged by affidavit in three counts, to wit (1) robbery, (2) robbery by the use of firearms, and (3) conspiracy to commit a felony. In each count he was charged further with having been convicted sentenced, and imprisoned in penal institutions twice for the commission of felonies. Trial by jury resulted in a verdict of guilty on the second count of the affidavit, and that he had been convicted theretofore as charged. Judgment was entered on the verdict that the appellant be imprisoned in the Indiana State Prison for a period of twenty years upon the second count of the affidavit, and, further, that he be imprisoned in the Indiana State Prison for the remainder of his life as an habitual criminal. A motion for a new trial was filed and overruled, upon which error is predicated.

The first question presented and relied upon by appellant is the giving of instruction No. 11, as follows: 'Now, the defendant has taken the witness stand and testified in his own behalf. In so doing, he becomes a witness for himself and you will scrutinize his testimony as you would that of any other witness, and regard him as a witness in the cause.' The appellant asserts: 'It was error for the Court to use the word 'scrutinize' in reference to the testimony of the defendant, when he had not in the instructions, used this word in reference to the testimony of any other witness, for the reason that this word implies, as used in this instruction, closer inspection or examination of the defendant's testimony, and invites the jury to view his testimony with suspicion.' This is the only point made by appellant in objecting to the instruction. It is not objected to upon the ground that it singles the defendant out and directs special attention to him as a witness. The instruction directs no closer scrutiny of the appellant's testimony than it does of the testimony of other witnesses. It says: 'You will scrutinize his testimony as you would that of any other witness * * *.'

The court gave the usual stock instruction upon determining the credit to be given the testimony of the witnesses and told the jury that they may take into consideration the demeanor of a witness upon the witness stand, his apparent candor, frankness, fairness, or the want of these characteristics, his interest or lack of interest, his intelligence, etc. No objection is made to this instruction.

As stated in Kell v. State, 1924, 194 Ind. 374, 379, 142 N.E. 865, 867: 'The general rule of law upon the subject of testimony of the defendant is 'that the testimony of the defendant shall be considered the same as the testimony of any other witness.'' The court did not state to the jury by instruction No. 11 that it should scrutinize the defendant's testimony in any manner different from that of any other witness. On the contrary, the instruction places him on an equality with all other witnesses. The instruction is more favorable to the appellant than is the stock instruction usually given by courts to juries upon the subject of bias, interest, etc. The appellant was not prejudiced by this instruction.

The next error relied upon by appellant is based upon instruction No. 24, given by the court to the jury upon its own motion, as follows:

'Certain evidence has been given in this cause as tending to show and establish prior conviction of the defendant of other crimes than the offenses herein charged.

'In your deliberations upon the guilt or innocence of the defendant of the offenses charged in the several counts of the affidavit, you will regard and consider such evidence of former convictions, if any, merely for the purpose of determining the credibility of the testimony of the defendant, the only witness whose testimony the same could affect, and you will in no sense regard it as evidence of the likelihood or possibility of the defendant having committed any one or all of the offenses charged in the several counts of the affidavit.'

When the court stated to the jury that 'you will regard and consider such evidence of former convictions, if any, merely for the purpose of determining the credibility of the testimony of the defendant,' it thereby misinformed the jury as to the purpose and use of the testimony establishing former convictions. At the time the state introduced its evidence of former convictions, the appellant had not taken the witness stand to testify in his own behalf....