Owens v. State, 869S188
| Decision Date | 17 February 1971 |
| Docket Number | No. 869S188,869S188 |
| Citation | 266 N.E.2d 612,255 Ind. 693 |
| Parties | Doris OWENS v. STATE of Indiana. |
| Court | Indiana Supreme Court |
William C. Erbecker, James Manahan, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant was indicted for theft and found guilty as charged. Evidence introduced at the trial reveals that the defendant concealed a man's sweater in her dress and that she left Shoppers Fair Discount Department Store of Indianapolis without paying for the sweater. A witness to the theft, Willie Wells, testified that he saw Doris Owens in the dress department of the store and that he saw her put a man's sweater underneath her clothing. He watched her until she went to the front of the store and then he called a security officer. The store's security officer, Michael Beaver, testified that he followed the defendant out of the store and asked her if she had anything that she had failed to pay for as she came through the store's checkout counter. The witness testified that the defendant answered, 'Yes, I have this blouse.' Thereafter, she was placed under arrest.
Defendant first argues that during the trial, the judge followed a persistent course of judicial misconduct, over repeated objections, with results that were demeaning to the court, the judiciary, and the bar, and which were contrary to law. For example, the following colloquy took place during the trial between the court and the opposing counsel:
The court at another point felt it necessary to assist the Prosecutor in getting the value of a sweater into evidence during direct examination of Willie Wells:
'Q. Can you read the tag on that sweater?
Q. Do you know the value of it?
MR. RYAN: To which we object.
A. $8.99.
THE COURT: Let the answer go out. Do you know the value of it?
A. Yes.
THE COURT: He knows the value, now ask him.
Q. What is the value of that sweater?
MR. RYAN: I'm going to object.
A. $8.99.
Concerning the defendant's taking the witness stand, the Court stated:
We do not commend such running commentaries by a judge who is clothed with the robe and behind the bench, with all the prerogatives adhering to such an office, particularly when they are made against a young attorney and one who is unable to retaliate in kind. Tolerance and understanding are much more worthy judicial attitudes under the circumstances.
Initially, we point out that the trial was conducted without a jury and that therefore any remarks made by the judge in the course of the trial court not be said to have prejudiced the defendant's case in the minds of legally untrained triers of fact. The basic issue is whether defendant received a fair and impartial trial. Defendant contends she received a hearing punctuated with quips and running commentary, judicial intrusions, and premature resolution of the most vital issue of fact. We point out, however, that the trial judge in actuality was critical of the prosecuting attorney. No evidence is apparent that defendant received an unfair trial by reason of certain comments by the judge, though we would question the propriety of some of the statements. The evidence was conclusive that the defendant was guilty of shoplifting from the store.
Defendant next claims that there was a fatal variance between the specific allegations of stolen property which appeared in the indictment and the proof made at trial in that the indictment alleged the theft of one blouse, two pairs of men's pants, and three men's sweaters. Evidence of the theft of one of the men's sweaters was introduced in court. Since the theft of just one sweater would be sufficient for a conviction of theft, no further proof was necessary.
A certificate from the Secretary of State established that Shoppers Fair Discount Department Store of Indianapolis existed as of July 4, 1967. The theft occurred August 16, 1967. Since witnesses Willie Wells and Michael Beaver both testified that they worked for Shoppers Fair on August 16, 1967, the existence of the store on that date is recognized. Willie Wells further testified that the sweater taken by the defendant was from the Shoppers Fair Discount Department Store. This is sufficient to prove the allegation in the indictment that the property was in the possession of Shoppers Fair Discount Department Store. Thomason v. State (1970), Ind., 263 N.E.2d 725.
Officer Beaver stated at the trial that he apprehended the defendant just outside the doors of the store. Before advising her of her constitutional rights, Officer Beaver proceeded to ask the defendant if she had anything in her possession that she failed to pay for at the counter. The defendant pulled out a blouse from her purse and said that she had not paid for it. We can only conclude that this testimony was properly admitted. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, requires that warnings be given before the onset of questioning if the situation is one of 'custodial interrogation.' In the case before us, defendant was merely asked a question that in fact could have cleared up an inadvertent mistake. Miranda says:
Miranda v. Arizona (1966), 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725.
The Miranda warning was given after the store manager indicated to the security officer that he would prosecute, the warning not having been necessary prior to that time.
Judgment affirmed.
I concur in the opinion of the majority in its resolution of the issues of the alleged misconduct of the trial judge and the alleged insufficiency of the evidence. I must depart from the majority, however, in resolving the issue of whether a certain statement made by the...
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