Olson v. State, 1-473A64
| Decision Date | 26 December 1973 |
| Docket Number | No. 1-473A64,1-473A64 |
| Parties | Donald O. OLSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
William G. Smock, Terre Haute, for defendant-appellant.
Theodore L. Sendak, Atty. Gen. of Ind., Stephen M. Sherman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant was charged by affidavit with theft of over $100.00, for the taking of an automobile. The case was tried to a jury which returned a verdict of guilty and the court timely passed sentence thereon.
The first issue presented for review pertains to the court's giving State's Instructions numbered 2 and 3, which are as follows, to-wit:
At the close of the evidence, before final argument of counsel, appellant listed verbatim State's tendered Instructions 2 and 3, which the court had indicated it would give, and dictated his objections. The verbatim objection to State's Instruction No. 2 was as follows:
"Defendant objects to State's Instruction Number Two a last sentence a ... there of a ... misleads the jury into the, a believing the, should disregard the doubt theory."
The verbatim objection to State's Instruction No. 3 was as follows:
It must be noted that Instruction No. 2 refers to "all incidental or subsidiary facts" and the first sentence of Instruction No. 3 refers to "... but it is not necessary that all incidental or subsidiary facts should be proved beyond a reasonable doubt." The rest and remainder of the two instructions are practically identical. We shall, therefore, group both instructions and treat them together under Rule AP.8.3(A)(7).
The case of Fuller v. State (1973), Ind., 304 N.E.2d 305, written by Chief Justice Arterburn and handed down December 12, 1973, discusses and sets out Instruction No. 2 in that case, which is identical to Instruction No. 3 in the case at bar. In Fuller, the court discussed the case of White v. State (1955), 234 Ind. 209, 125 N.E.2d 705, which discussed the phrase "subsidiary evidence," which was relied upon for reversal in the case at bar, and distinguishes between the instruction complained of in Fuller and the case at bar, and the White case.
The Fuller case is dispositive of the issue on Instructions 2 and 3 in the case at bar, as the court held that the giving of such instructions did not constitute reversible error insofar as they pertained to "incidental or subsidiary facts."
Under the authority of Fuller we have determined that the court did not err in giving Instructions 2 and 3 in the case at bar.
The second issue presented by appellant pertains to defendant-appellant's tendered final Instructions No. 6 and 8, covering reasonable doubt. Appellant contends that the court committed error when the instructions were refused on the ground that they were repetitious.
A close scrutiny of the record discloses that reasonable doubt was covered by the court's preliminary Instructions 3, 4, and 5; court's final Instructions 3 and 4; State's Instruction 5, and defendant's Instructions 1, 2, 3, 4, 5, 7, 9, and 11.
Defendant's proposed Instructions 6 and 8 were general statements of the law on reasonable doubt and were not unlike those instructions we have hereinabove indicated were given by the trial court. We are of the opinion that the jury was fully and adequately instructed as to reasonable doubt. Hash v. State (1972), Ind., 284 N.E.2d 770; Armstrong v. State (1967), 248 Ind. 396, 229 N.E.2d 631.
The third issue presented was that the defendant's tendered Instruction No. 13 was a correct statement of the law. The court's reason for refusal of said instruction was that it was a mis-statement of the law.
The said Instruction No. 13 reads as follows, to-wit:
"The failure of the State of Indiana to use available witnesses already listed raises a presumption that such witness's testimony would be adverse to the State."
This instruction alludes to a witness, David Eaton, who signed the affidavit in this cause and who was listed as a witness for the State of Indiana.
Defendant-appellant urges that his constitutional rights were violated for the reason he was not privileged to meet David Eaton face to face and cross examine him. He further says that the refusal was more damaging since, in final argument, the Prosecuting Attorney was allowed to comment on what the testimony of David Eaton would be without putting said witness on the stand in order that he could be cross examined. Defendant-appellant relies on Goodloe v. State (1967), 248 Ind. 411, 229 N.E.2d 626, in which case the court stated that, where one of the State's witnesses was present in court in response to a subpoena by the state, but the prosecuting attorney refused to put the witness on the stand, there was presumptive evidence that his testimony would be adverse to the state.
Goodloe is not in point, for the reason that the prospective witness, Eaton, was not present in the court at trial time.
Defendant-appellant relies on Spright v. State (1970), Ind., 260 N.E.2d 770, wherein our Supreme Court stated that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, even in criminal cases, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.
Chief of detectives, Frank Hoffman, testified it was not unusual for police officers to sign the charging affidavits on information they received from witnesses or from investigations reported to them. Detective Hoffman further testified that Mr. Eaton had no information pertaining to the case at bar except hearsay.
And, further, had the defendant-appellant desired to use Officer Eaton it was his right and privilege to have subpoened him in adequate time before trial that he would have been present.
We find no...
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