Micks v. State, 30766

• Decision Date: 18 October 1967
• Docket Number: No. 30766,30766
• Citation: 11 Ind.Dec. 344,249 Ind. 278,230 N.E.2d 298
• Parties: Thomas L. MICKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 298

230 N.E.2d 298

249 Ind. 278

Thomas L. MICKS, Appellant, v. STATE of Indiana, Appellee.

No. 30766.

Supreme Court of Indiana.

Oct. 18, 1967.

Rehearing Denied Dec. 21, 1967.

Ferdinand Samper, Forrest Bowman, Jr., Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Wilma T. Leach, Deputy Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

The appellant was convicted of robbery and sentenced to 10-to-25 years in the Indiana State Reformatory. The trial was by jury. The defendant appellant filed a motion for a new trial alleging:

(1) The verdict of the jury was not sustained by sufficient evidence;

(2) The verdict of the jury was contrary to law.

Appellant's counsel thereafter filed a petition for permission to file a belated motion for a new trial. Permission was granted and the belated motion incorporated the specifications contained in the original motion for a new trial and added specification 3 through 10 inclusive. The belated motion for a new trial was overruled and this appeal then prosecuted.

The appellant urges specifications 1, 2, 5, 7, 8 and 10 of his belated motion for a new trial. Specifications 5, 7, 8 and 10 are as follows:

'5. Error of law occurring at the trial in this: The Court erred in refusing on its own motion to permit the witness Roy Thomas Owen to answer the following question during cross examination by the defendant which question and ruling are set out as follows, to-wit:

'Q. You don't know if either one of them removed it, do you.

'THE COURT: He's already answered that question, he said he didn't.'

'7. Error of law occurring at the trial in this: The Court erred by reading from paraphrasing and commenting upon in the presence of the jury State's Exhibit Number Three which remarks of the Court are set out as follows, to-wit:

'THE COURT: Well, this is self-certifying, it has the seal of the Secretary of State of the State of Indiana. I will overrule the objection. Show State's Exhibit Three admitted into evidence over objection and examined by the Court. Rather than take the time to pass it to the jury, it is a certificate of the Secretary of State, which states, paraphrasing, in effect, that the United Oil Service, Inc. is a corporation according to the records now on file in the office of the Secretary of State, filed the eighteenth of November, 1953, setting forth that it was a corporation existing as of February twenty-fifth, 1964. Go ahead.'

'8. Error of law occurring at the trial in this: The Court erred in admitting in evidence over the objection of the defendant the following testimony of the witness Eddie Keith Duckworth during direct examination by the State of Indiana which question, objection, ruling and answer are set out as follows, to-wit:

'THE COURT: I will overrule it. He may answer. The question is, what did you do next.

'DIRECT EXAMINATION RESUMED BY MR. BARNEY

'A. Well, I knocked on the door, and Mr. Micks opened the door. I observed Mr. Mothershead run into the other room. I chased Mr. Mothershead.

'MR. McMASTER: Now, I object. Your Honor, Mr. Mothershead isn't a party to this action.

'THE COURT: The question is, what did you do. He is telling what he did. I will overrule the objection.

'A. Mr. Mothershead tried to flush some money down a toilet which didn't work. Officer Pritchett grabbed Mr. Micks. We handcuffed both subjects. And upon interrogating them, we recovered a pistol underneath the cushion on the davenport, we recovered a padlock, a master padlock and a set of keys belonging to the filling station laying on a table in the front room.'

'10. Error of law occurring at the trial in this: The defendant was denied representation by counsel by reason of the inadvertent failure of defense counsel to establish by proper questions that the witness Eddie Keith Duckworth did not have probable cause to believe the defendant guilty of the commission of a felony at the time the witness Eddie Keith Duckworth entered the private home of the defendant.'

Specification 5, supra, indicates that the Court pre-emptorily shut off cross-examination of witness Owen. We conclude that the record fails to disclose that it was manifest abuse of discretion on the part of the Trial Court that resulted in injury to the appellant.

'* * * It is a settled rule of practice in this state that the extent of the cross-examination permitted is within the sound discretion of the trial court and only an abuse of this discretion is cause for reversal on appeal. * * * to justify a reversal on account of the admission or exclusion of questions on cross-examination, there must have been a manifest abuse of discretion to the injury of the complaining party.' Henry v. State (1925), 196 Ind. 14, 146 N.E. 822.

Specification 7, supra, is alleged error at law which occurred at the trial when the Court read to the jury the substance of State's Exhibit Number 3. Exhibit Number 3 was a certificate from the office of the Secretary of State of the State of Indiana showing the corporate existence of United Oil Service, Inc., a corporation. The Court not only commented to the jury concerning the exhibit, but also interpreted the instrument. We emphasize here the rule laid down by this Court in Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848, which is as follows:

'* * * It is equally important that the judge be impartial. * * * The federal practice permitting the judge to comment on the evidence does not prevail in our state courts. * * *'

We also re-emphasize the holding of this Court in the early case of Aszman v. State (1889), 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33, in which this Court said, in substance, that judges are not permitted to comment upon the weight and value of evidence. This Court said, in substance, in Reinhold v. State (1891), 130 Ind. 467, 30 N.E. 306, that the Court may not make statements in excess of what was proper * * * and certainly no statement could be made that could be calculated to influence the minds of the jury to the prejudice of the accused. Here, however, we are not at all convinced that the interpretation of an instrument by the Court in any way prejudiced the accused. We do not condone this practice and think the safer presentation to the jury would be to follow the practice of having counsel read the exhibit word for word to the jury leaving the interpretation to the jury or, in lieu thereof, to pass the exhibit to the jury and let the jury, member by member, read the exhibit and let each juror, for himself, make his own interpretation. The Court's departure from the normal and accepted practice here, however, is not reversible error; particularly since counsel did not object; did not move for an instruction asking the Court to tell the jury that the Court entertains no opinion concerning the guilt or innocence of the defendant and that the Court did not have any opinion concerning the probative value of Exhibit Number 3; and, counsel did not move for a mistrial.

We remind counsel that it is his duty, if he desires to save a question for appeal, to make proper objections and to request proper remedies from the Trial Court. This is just as true when the alleged errors are committed by the Court as when erroneous and improper questions are propounded by opposing counsel.

This Court made the following statement in Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523:

'Although there may be some question about the temperateness of the remarks, no objections were made thereto at the time. A party may not sit idly by and make no objections to matters he might consider prejudicial, awaiting the outcome of a trial, and thereafter raise such question for the first time.' quoting with authority from Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629; Kern v. Bridwell (1889), 119 Ind. 226, 21 N.E. 664.

And, we believe the directions set out in Gamble v. Lewis, supra, are particularly useful here: prompt objection, if reasonably required; a request for limiting instructions stating why the harm done could not be cured, as well as a motion for mistrial, are required.

'* * * We cannot permit litigants to gamble on the possibility of a favorable verdict, * * *'

Specification 8, supra, alleges error on the part of the Trial Court in permitting the prosecuting attorney to elicit from a police officer certain acts purportedly committed by one Mothershead at the time the police officer arrested Mothershead and the appellant. Mothershead and the appellant were indicted...