Ogle v. State

Decision Date25 May 1920
Docket NumberNo. 23612.,23612.
Citation127 N.E. 547,193 Ind. 187
PartiesOGLE v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Allston Ogle was convicted of arson, and he appeals. Affirmed.

George W. Galvin and Hottel & Patrick, all of Indianapolis, for appellant.

Ele Stansbury, A. B. Cronk, and Newman T. Miller, all of Indianapolis, for the State.

MYERS, C. J.

In the Hamilton circuit court appellant was convicted of arson. The subject of the arson was a barn located in Hamilton county, and the property of Gilbert Hanna. Appellant was tried by the court. Following the overruling of appellant's motion for a new trial, he was sentenced to imprisonment at the Indiana Reformatory for a period of from 2 to 21 years and to pay a fine of $50.

[1] The only error here assigned is the overruling of the motion for a new trial. Appellee makes the point that the bill of exceptions containing the evidence is not in the record, for the reason that there is no order–book entry showing that such bill was filed after it was signed by the trial judge. We have examined the record on this subject, and find an order–book entry showing that the bill was presented, signed, and filed in open court. This showing was sufficient in that respect to make the bill a part of the record. Rose v. Chicago, etc., R. Co., 181 Ind. 658, 659, 105 N. E. 241;Indianapolis Outfitting Co. v. Brooks, 59 Ind. App. 79, 108 N. E. 867.

The motion for a new trial contains various causes, the most important of which is the claimed erroneous admission of certain evidence by the court over appellant's objection, and that the effect of the action of the state fire marshal was to grant appellant immunity for the crime with which he was charged.

The uncontradicted evidence shows that the fire, which entirely consumed the building, occurred at night on February 27, 1919; that a few days before, and on the afternoon before the fire, appellant told certain persons that he was going to burn the barn, and gave his reasons for his intention; that on the morning after the fire he admitted to one of these same parties that he had burned it. It further appears that the state fire marshal, on being advised of the fire, instructed one of his assistants to investigate the cause thereof. Thus the investigation was started and continued, and during the progress thereof an affidavit was filed before a justice of the peace of Hamilton county charging this appellant with the crime of which he was later convicted. A warrant was issued by the justice of the peace, and placed in the hands of an arresting officer, who, with other persons, including the assistant fire marshal, proceeded in an automobile to the home of appellant, in Madison county, where he was arrested, and immediately taken to the state fire marshal's office in the city of Indianapolis. Without being interrogated he left that office with the arresting officer, and on the next morning, in company with such officer, he returned to the fire marshal's office, when and where he was questioned concerning his connection with the fire.

This examination, at first being in the nature of questions and answers taken down by a shorthand reporter, was finally reduced to writing in narrative form, signed and sworn to by appellant before a notary public, an employé in the fire marshal's office. This narration was in the nature of a written confession.

At the trial, which resulted in a conviction, the state, over appellant's objection, was permitted to read in evidence the purported written confession, and witnesses were permitted to testify as to what appellant said concerning the fire, and his connection with it, while in charge of the arresting officer at the fire marshal's office.

[2] The objection urged against the admission of this evidence, and to which appellant has called our attention, is to the effect that it was not admissible, as tending to prove appellant's guilt, for the reason that it pertained to admissions of a criminating nature obtained from appellant by the fire marshal and his assistants at his office in Indianapolis while appellant was there in custody of the arresting officer, as a part of and during the investigation then and there being conducted by the fire marshal. This objection was grounded on section 14, art. 1, of our Bill of Rights, which provides that “no person, in any criminal prosecution, shall be compelled to testify against himself.” No doubt can be entertained as to appellant's right to this constitutional immunity, nor is there any doubt that he may waive this benefit, for in this instance the right was a personal privilege, and in no way affected the general public. Shular v. State, 105 Ind. 289, 299, 4 N. E. 870, 55 Am. Rep. 211.

We are thus brought to the question of whether or not appellant waived this constitutional protection. If he did, he cannot be heard to complain. If he did not, then the objection in question should have been sustained.

[3][4] This court has held that—

“a confession, when offered in evidence against the accused, is prima facie admissible, and the necessity of showing its incompetency, under the statute, is devolved upon him. Thurman v. State (1907) 169 Ind. 240;Ginn v. State (1903) 161 Ind. 292;Hauk v. State (1897) 148 Ind. 238. If the confession of appellee was otherwise voluntary, it could not be rendered incompetent by the mere circumstance that he was, at the time of making it, in the custody of officers, or from the fact that his statements were made in response to questions put to him by the prosecuting attorney. State v. Freeman (1859) 12 Ind. 100;Harding v. State (1876) 54 Ind. 359;Benson v. State (1889) 119 Ind. 488; Gillett, Indirect and Collat. Ev. § 111; 12 Cyc. 456, and cases cited under note 9.” State v. Laughlin, 171 Ind. 66, 70, 84 N. E. 756, 758.

The circumstances under which appellant was led to make the confession, or give evidence before the fire marshal, pertaining to the fire, are important, since, under our statute (section 2115, Burns 1914), provided that confessions “made under the influence of fear, produced by threats or by intimidation or undue influences,” are not admissible.

[5] At common law the admissibility of confessions was for the trial judge to determine under the particular circumstances of each...

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2 cases
  • Ogle v. State
    • United States
    • Indiana Supreme Court
    • May 25, 1920
  • Spitler v. State, 27766.
    • United States
    • Indiana Supreme Court
    • February 15, 1943
    ...The provisions of the Constitution upon which the appellant relies affords no protection that may not be waived by him. Ogle v. State, 1923, 193 Ind. 187, 127 N.E. 547;Shular v. State, 1885, 105 Ind. 289, 4 N.E. 870,55 Am.Rep. 211. The judgment is ...

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