Oldham v. State, 30943
| Decision Date | 22 December 1967 |
| Docket Number | No. 30943,30943 |
| Citation | 231 N.E.2d 791,249 Ind. 301 |
| Parties | James Homer OLDHAM, Kenneth Lee Davis, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellants.
John J. Dillon, Atty. Gen., Raymond I. Klagiss, Deputy Atty. Gen., for appellee.
The appellants herein are appealing from convictions in the Circuit Court of Vanderburgh County of the offense of assault and battery with intent to commit a felony, to-wit: robbery. Ind.Ann.Stat. § 10--401 (Supp.1967).
Prosecution was commenced on the basis of an affidavit charging appellants with robbery, Ind.Ann.Stat. § 10--4101 (1956); appellants entered pleas of not guilty and thereafter trial was had by jury. The trial resulted in the jury appellants guilty of a lesser included offense of assault and battery with intent to commit a felony. Upon this verdict the court sentenced each appellant to the Indiana Reformatory for not less than one (1) nor more than ten (10) years.
The error assigned and relied upon by appellants is the overruling of their motion for a new trial. Specifically appellants first complain that the State of Indiana failed to prove that the offense charged occurred within the jurisdiction of the State of Indiana causing the verdict to be (1) contrary to law, and (2) not sustained by sufficient evidence.
The evidence and all logical and reasonable inferences that may be adduced therefrom will be viewed most favorable to the appellee, State of Indiana. Capps v. State (1967), Ind., 229 N.E.2d 794; Beatty v. State (1963), 244 Ind. 598, 194 N.E.2d 727. The record of evidence reveals that Police Officer Jack Weber testified for the State that he and Officer Stillwell asked the victim to take them to the scene of the crime. Officer Weber then testified that the victim led them to the spot where the crime occurred and that this place was located in Vanderburgh County, Indiana. From the foregoing, it is evidence that the State has clearly shown that the offense did occur within the State of Indiana. The appellee, State of Indiana, has likewise shown that it occurred within Vanderburgh County, for the evidence more than supports an inference that the crime charged was committed in the county named in the charge.
The next issue raised by appellants is set forth in specification no. 3 of their motion for new trial.
The record shows that trial took place on October 13, 14 and 15, 1965. The record also shows that one of the appellants, James Homer Oldham, had observed the alleged misconduct on the second day of trial, however he did nothing to bring the matter to the court's attention until after trial. It is well recognized that failure to make timely objection waives the right to question matters involving the conduct of the jury, Brown v. State (1964), 245 Ind. 604, 201 N.E.2d 281, and the fact that defendants' counsel may not have known about the alleged misconduct is unimportant so long as one of the defendants knew of it, Trombley v. State (1906), 167 Ind. 231, 78 N.E. 976.
When the record is viewed most favorable to the State, there is no evidence to indicate any discussion of the case nor any full exchanges of conversation. The record only shows that the juror, Jessie Hoskins, spoke to witnesses for the State to the effect 'how are you'. The record further indicates by counter-affidavits offered by the State that the only response given was advice that they could not converse with the juror.
The appellants allege that the juror, Hoskins, on numerous occasions sought to converse with witnesses in the case and with the Chief Deputy Prosecuting Attorney, and that although there is testimony that he did not discuss the trial of the case or the evidence the appellants were prejudiced by having an individual on the jury deliberately seek to converse with witnesses after he had repeatedly been admonished not to do so.
Appellants rely on the proposition that when a juror solicits conversation from a witness it...
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Ramirez v. State
...any contact or communications were harmless. SeeMyers v. State, 240 Ind. 641, 646, 168 N.E.2d 220, 223 (1960); Oldham v. State, 249 Ind. 301, 305, 231 N.E.2d 791, 793 (1967). If the State does not rebut the presumption, the trial court must grant a new trial. On the other hand, if a defenda......
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Shack v. State
...of a fair trial. It was therefore not erroneous for the trial court to overrule appellant's motion for a mistrial. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791; Smith v. State (1960), 241 Ind. 311, 170 N.E.2d 794. Appellant puts emphasis on the fact that the jurors involved did ......
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York v. State
...reasoning of the following case law precedent dealing with the related question of alleged juror misconduct. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, 793; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220, 223; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, 683; Tr......
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Helms v. State
...by cogent argument and are unsupported by case law citations in appellant's brief and are therefore waived. Oldham, Davis v. State (1967), Ind., 231 N.E.2d 791. Supreme Court Rule Appellant's assignments of error numbered 6, 7, 8 and 9 of his motion for new trial are grouped together for th......