Olson v. State
| Decision Date | 05 September 1974 |
| Docket Number | No. 974S174,974S174 |
| Citation | 315 N.E.2d 697,262 Ind. 329 |
| Parties | Donald O. OLSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Donald Olson was convicted of theft of property over $100.00 (I.C.1971, 35--17--5--3, being Burns § 10-- 3030, and I.C.1971, 35--17--5--13, being Burns § 10--3040) after a trial by jury in the Vigo Circuit Court, C. Joseph Anderson presiding. He appealed his conviction to the Court of Appeals, First District contending that the court erred in giving certain instructions to the jury and also that hearsay evidence was erroneously admitted in the course of the prosecutor's case-in-chief. The First District affirmed his conviction in an opinion found at 304 N.E.2d 830.
Olson has now filed his petition to transfer in this Court in which he urges the admission of hearsay evidence as his sole ground for transfer and reversal. The petition is granted and we reverse and remand for a new trial.
The evidence of theft produced by the State was circumstantial in nature. It showed that on January 10, 1972, Howard Potter took his new Pontiac to the Adams Pontiac Service Center in Terre Haute, Indiana, for some adjustments. Both Potter and the owner of the dealership testified that when he returned to pick up his car later in the day it was gone.
Charles McGee testified that he lived in Terre Haute and that in the early hours of the morning of January 10, 1972, he discovered that the license plate to his car (84 C 3682) had been taken sometime between the hours of 4:00 p.m. and midnight that evening. At the close of McGee's evidence the petitioner moved the court to strike his testimony on the grounds that his name had not appeared on the list of witnesses furnished to him by the prosecutor. The trial court granted the motion, struck McGee's testimony and instructed the jury to disregard it in its deliberation.
A subsequent State witness, however, testified that he was a Terre Haute detective and identified a certain form as one used by the Terre Haute Police Department for the reception of complaints by telephone. The exhibit, No. 4--A, was admitted into evidence over petitioner's objections that it was hearsay in nature. Exhibit 4--A revealed that at 12:20 a.m. on January 11, 1972, Officer Polifroni of the Terre Haute Police Department received a telephone complaint from a Mr. Charles McGee stating that his license plate (84 C 3682) had been lost or stolen sometime between the hours of 4:00 p.m. and midnight on January 10, 1972.
The remainder of the State's case consisted of testimony from two witnesses placing petitioner in and around the Terre Haute area between the 1st and 7th of January, and several depositions from St. Petersburg, Florida Police Officers. These depositions revealed that on the 1st of March, 1972, petitioner was stopped for speeding in St. Petersburg. He attempted to flee the police officer but was quickly stopped and recaptured. It was subsequently learned that the car petitioner was driving at the time he was stopped was the car missing from the Adams Pontiac lot and that it had Indiana license plate number 84 C 3682 on it. Petitioner also told the police that he had not been in Indiana for several years.
The essence of petitioner's argument is that Exhibit 4--A, the complaint report, is hearsay evidence and his in-trial objection to it was erroneously overruled. Petitioner is correct in his contention that the exhibit falls within the definition of hearsay we adopted in Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759, and other cases.
'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility...
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