New v. State, No. 968S152

Docket NºNo. 968S152
Citation254 Ind. 307, 21 Ind.Dec. 720, 259 N.E.2d 696
Case DateJune 19, 1970
CourtSupreme Court of Indiana

Page 696

259 N.E.2d 696
254 Ind. 307
Michael Duane NEW, Appellant,
v.
STATE of Indiana, Appellee.
No. 968S152.
Supreme Court of Indiana.
June 19, 1970.

[254 Ind. 308]

Page 697

Lawrence D. Renfro, George W. Hand, Scotten & Hinshaw, New Castle, of counsel, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction for Second Degree Murder. Appellant herein was adjudged by jury in the Henry County Circuit Court and sentenced according to the statutory provisions.

A fair statement of the evidentiary facts indicates the following:

[254 Ind. 309] On the night of January 24, 1968, at approximately 11:45 p.m., the appellant and the deceased left work at the Chrysler Plant in New Castle, Indiana. They drove in deceased's car to the home of the appellant's grandmother where appellant picked up four beers which he had hidden on the back porch. After aimlessly driving around fro awhile they drove to Knightstown to pick up the deceased's wife. After agreeing that the deceased and his wife would spend the night with the appellant in Lewisville, they drove to appellant's stepfather's house where appellant got a partially filled bottle of whiskey. They then proceeded to Lewisville where the incident

Page 698

took place at the home of appellant's father, who was then in Florida. Appellant and deceased consumed the remaining portion of the whiskey as well as a six pack of beer which they had brought from Knightstown. Appellant then wanted the deceased to take him to a tavern to get more to drink. The deceased refused because it was after 2:00 a.m. and all taverns were closed. An argument ensued and testimony conflicts as to whether or not deceased actually struck or slapped the appellant. In any event, deceased and his wife left the house and were getting in their car parked directly in front of the house when the appellant obtained at 20 gauge shotgun, loaded it and stepped onto the front porch. Appellant called to the deceased who was then standing on the sidewalk in front of the house. After a short verbal exchange, the appellant fired the gun killing the deceased.

Appellant was indicted for Second Degree Murder and trial by jury was held in April, 1965. Appellant was adjudged guilty and sentenced to life imprisonment.

I.

Appellant's first allegation of error is that the trial court erred in admitting into evidence State's exhibit #4, a photograph of the deceased taken at the Henry County Hospital Morgue. Appellant contends that the photograph did not tend to prove or disprove any of the issues in this cause of [254 Ind. 310] action and only served to inflame the passions of the jury. This allegation of error is without merit.

The admission into evidence of a photograph is within the sound discretion of the trial court and the court's action therein will not be disturbed except for an abuse of such discretion. Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d 860. No such abuse is shown here.

In determining the relevancy of a photograph the court will inquire as to whether or not a witness would be permitted to describe the objects photographed. In Hawkins v. State (1941), 219 Ind. 116, 37 N.E.2d 79, photographs of the decomposed body of the deceased were held admissible on the grounds that the facts shown in the photographs had been described without objection and that the photographs served to supplement the oral testimony. In holding the photographs admissible the Court said:

'A photograph, proved to be a true representation of the person, place or thing which it purports to represent, is competent evidence of anything, of which it is competent and relevant for a witness to give a verbal description.' 219 Ind. at 127, 37 N.E.2d 79.

In the case at hand, the photograph was similarly admitted. It was offered into evidence in support of the testimony of the Henry County Coroner. This testimony was concerned with the nature and extent of the wounds which caused the death of the deceased. Such testimony was relevant and competent and taken without objection. The photograph, being a graphic portrayal of the testimony, was properly admitted.

The leading Indiana case on the admission of photographs is Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. In that case, a total of six photographs of the body of the deceased were admitted into evidence. Appellant objected to the admission of five of the photographs, exhibits 10, 11, 12, 13 and 14. The Court in holding that three of those, exhibits 10, 11 and 12 had been properly admitted, said:

[254 Ind. 311] 'Even though these photographs representing Exhibits Nos. 10, 11 and 12 may have been, to some degree, repetitious and cumulative, and are gruesome in character, they serve to elucidate and explain relevant oral testimony given at the trial and they were properly admitted for the purpose of showing fully the scene of the crime, the nature of the wounds of the victim, and the condition of the

Page 699

basement immediately after the crime was committed.' 239 Ind. at 108, 153 N.E.2d at 901.

State's exhibits 13 and 14 were photographs of the deceased's body taken at the Morgue at the time the autopsy was performed. State's exhibit 13 showed the hands and instruments of the doctor inside the deceased's chest. State's exhibit 14 showed additional incisions made by the doctor during the autopsy. The court in holding that these two photographs had not been properly admitted said:

'These exhibits were not in anyway necessary to establish the corpus delicti. They did not show the position of the parties to the crime nor correctly show the wounds of the victim or the cause of her death. They did not 'shed any light on any issue' or enlighten the jury on any fact in issue, but served only to arouse passion and prejudice.

'These exhibits were calculated to, and in our opinion did, only incite sympathy for the woman who lost her life and indignation against the appellant herein. They were unnecessary and were introduced only for the purpose of inflaming the jury's emotions.' 239 Ind. at 117, 153 N.E.2d at 905.

We do not believe that State's exhibit 4, the photograph in the present case, can be similarly classified. This photograph portrays the body of the deceased victim in the Morgue. The body is lying face up, and is nude from the waist up. The left arm is being held up by an unidentified person in order to make the wounds to the underside of the left upperarm and left side of the body visible. The body had not been subjected to an autopsy or otherwise altered. This photograph was the only photograph which was offered to show the nature and extent of the deceased's wounds and accurately portrayed them. The photograph served to elucidate the [254 Ind. 312] testimony of the coroner concerning the wounds. State's exhibit 4 was properly admitted.

II.

Appellant's next allegation of error is that the trial court erred in permitting State's witness, Sgt. Petro, to testify that in his opinion the appellant was not intoxicated. This testimony was properly admitted. The rule in Indiana permits a non-expert witness to give testimony as to whether or not in his opinion a defendant was intoxicated. Johnson v. State (1929),201 Ind. 264, 167 N.E. 531. The witness testified that the appellant was capable of conducting a rational conversation, his speech was not slurred, appeared normal and exhibited no abnormal behavior. On the basis of these functional observations the witness stated in his opinion that the appellant was not intoxicated. This is in accordance with the accepted manner of making such proof. Railway Express Agency, Inc. v. Bonnell (1941), 218 Ind. 607, 33 N.E.2d 980, 34 N.E.2d 927. The determination of whether or not the degree of intoxication was such as to prevent the appellant from forming specific intent is a question of fact to be determined by the trier of facts. Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607. However, the testimony of this witness that, based on his observations, in his opinion the appellant was not intoxicated did not invade the province of the jury and was properly admitted.

III.

Appellant next alleges that the trial court erred in permitting Sgt. Petro to testify over appellant's objection as to statements made by the defendant at a time when defendant was not adequately advised of his constitutional rights and was so intoxicated as to render himself incapable of waiving those rights and making a voluntary statement.

[254 Ind. 313] The testimony in question can be segregated into two...

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80 practice notes
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...supra, or statements which are made before the officers are given an opportunity to administer the Miranda warnings. New v. State (1970) 254 Ind. 307, 259 N.E.2d Schiro argues that Ken Hood was a law enforcement officer who interrogated him in Hood's office. The State strongly argues that H......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1973
    ...412; Daniels v. State (1971), Ind., 274 N.E.2d 702, 705; Buckley v. State (1970), 254 Ind. 621, 261 N.E.2d 854, 857; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696, 703; Day v. State (1968), 251 Ind. 399, 241 N.E.2d 357, Equally well entrenched in Indiana law is the principle that the de......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1975
    ...sometimes to appeal to passions in its attempts to obtain convictions. Hubble v. State (1973), Ind., 299 N.E.2d 612; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d When prejudicial imbalance appears, this Court will not hesitate to set a......
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...is covered by other instructions which are given, Hash v. State, (1972) 258 Ind. 692, Page 396 284 N.E.2d 770; New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696; Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479." Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, With this test ......
  • Request a trial to view additional results
80 cases
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...supra, or statements which are made before the officers are given an opportunity to administer the Miranda warnings. New v. State (1970) 254 Ind. 307, 259 N.E.2d Schiro argues that Ken Hood was a law enforcement officer who interrogated him in Hood's office. The State strongly argues that H......
  • Parsons v. State, No. 2--1272A138
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1973
    ...412; Daniels v. State (1971), Ind., 274 N.E.2d 702, 705; Buckley v. State (1970), 254 Ind. 621, 261 N.E.2d 854, 857; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696, 703; Day v. State (1968), 251 Ind. 399, 241 N.E.2d 357, Equally well entrenched in Indiana law is the principle that the de......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1975
    ...sometimes to appeal to passions in its attempts to obtain convictions. Hubble v. State (1973), Ind., 299 N.E.2d 612; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696; Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d When prejudicial imbalance appears, this Court will not hesitate to set a......
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...is covered by other instructions which are given, Hash v. State, (1972) 258 Ind. 692, Page 396 284 N.E.2d 770; New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696; Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479." Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, With this test ......
  • Request a trial to view additional results

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