Myers v. State, 29862

• Decision Date: 28 June 1960
• Docket Number: No. 29862,29862
• Citation: 168 N.E.2d 220,240 Ind. 641
• Parties: Ernest Paul MYERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 220

168 N.E.2d 220

240 Ind. 641

Ernest Paul MYERS, Appellant, v. STATE of Indiana, Appellee.

No. 29862.

Supreme Court of Indiana.

June 28, 1960.

Herrod Carr, Greensburg, for appellant.

Edwin k. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., for appellee.

PER CURIAM.

Appellant was charged by amended affidavit with the crime of second degree burglary under Acts 1941, ch. 148, § 4, p. 447, being § 10-701, Burns' 1956 Replacement, tried by jury, found guilty as charged, and sentenced accordingly.

The affidavit charged appellant with breaking and entering into the 'filling station building of Floyd M. Rayner and Betty Lou Rayner' in Milan, Indiana, being a dwelling house or place of human habitation, and taking away goods, chattels and personal property of Robert O. Rayner and Floyd M. Rayner, d/b/a R. O. Rayner & Son, consisting of razor blades and other items not here in question.

Appellant asserts that the trial court erred in overruling his motion for a new trial and urges the following alleged errors.

First: It is asserted that the trial court erred in permitting the introduction of four packages of razor blades into evidence over the objection of appellant, on the ground that they were not properly identified as being the property of the victim of the robbery.

Charles K. Spencer, the town marshal of Milan, Indiana, who apprehended and handcuffed appellant as he came out of the filling station, testified, as a witness for the State, that the county sheriff and he searched appellant as soon as the sheriff arrived at the scene of the crime and 'took four packages of razor blades out of his (appellant's) pocket;' and that appellant admitted that he 'got them' in the filling station, which was the subject of the alleged burglary herein, and that they were the property of Rayner. This witness further testified, on cross-examination, that he 'took the blades off' appellant and that they had been in his (the marshal's) possession until he gave them to the prosecuting attorney on the morning of the trial.

The above testimony was sufficient to identify the razor blades as property taken from the filling station and persons described in the affidavit.

Second: Appellant asserts that his right to a fair and impartial trial was violated by the alleged misconduct of the jury in (a) 'that after the jury had been impanelled and during the noon hour intermission and before the defendant introduced any evidence, part of the jurors met in a tavern across from the court house in Versailles, Indiana, and while drinking intoxicating liquors, discussed the case among themselves and stated in words in [and] substance that the defendant was guilty and it would not take them long to convict him;' and (b) 'that the court permitted the jurors at intermissions to sit in the corridor of the court house', and on one or more occasions, while there, some of the jurors conversed with three of the witnesses for the State.

All of the affidavits pertaining to the discussion by members of the jury at the tavern are based upon hearsay--what the affiant heard someone say--and none of the jurors are identified. These affidavits are insufficient to charge misconduct of a juror, not only because they are based upon what some third person overheard members of the jury say regarding their opinion as to the guilt of the defendant-appellant, but also because none of the jurors involved are in any way identified. Reyman v. State, 1926, 197 Ind. 685, 695, 150 N.E. 409.

Counter-affidavits were submitted by State's witnesses mentioned in appellant's affidavit in which it is asserted that at no time did the affiants communicate with any member of the jury about the defendant-appellant or anything concerning the case in which they were called as witnesses.

While the practice of permitting members of the jury to mingle with witnesses or others in anyway connected with the trial, is to be condemned, it here appears that both the witnesses and the attorney for appellant were also permitted to mingle with members of the jury.

In Spencer v. State, 1958, 237 Ind. 622, 147 N.E.2d 581, it was charged that the court erred in permitting members of the police department, prosecuting staff, investigators, and the public generally to mingle with the jury and pass through the room where the members of the jury stayed during intermissions and recesses, and that it was possible under such circumstances for the jury to overhear statements and comments from such persons concerning the trial. These charges were supported by verified statements. Appellant, Spencer, made no objection to such practice during the trial, although it was as apparent to him and his counsel as to any other person. At page 624 of 237 Ind., at page 582, of 147 N.E.2d we said:

'We do not approve of the practice of permitting the jury to mingle freely with the spectators and those participating under the conditions stated. However, duder the conditions stated. However, it is incumbent upon the appellant to make prompt objections to such practice and to request that remedial measures be taken by the court. The appellant may not wait until the outcome of the case is known before making an objection.'

It does not appear that appellant herein made any objection, during the trial,...