Pinkston v. State, 1169S276
| Decision Date | 29 June 1972 |
| Docket Number | No. 1169S276,1169S276 |
| Parties | Wilbur PINKSTON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Bruce E. Bloom, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, William F. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Voluntary Manslaughter and sentenced to imprisonment for not less than two nor more than twenty-one years. This appeal from said judgment presents two questions, the first relating to the substitution of an alternate juror and the second to the court's having restricted certain cross examination of a State's witness.
(1) Following submission to a jury of twelve and one alternate, juror number 6 was discharged and the alternate juror substituted. The record is devoid of any showing of the cause for such substitution, other than the allegation in the subsequent motion for mistrial indicating that juror number 6 had separated from the other jurors after the commencement of deliberation, nor does the record reflect any objection having been interposed at the time the substitution was made. Following such a substitution and prior to rendition of the verdict, the defendant orally moved for a mistrial, the minute thereon being as follows:
'Comes now the defendant, prior to verdict, and moves the Court for a mistrial on the grounds that the alternate Juror in this cause was in a position to witness and overhear conversation pertaining to further experiments with the State's exhibit, and that Juror number Six (6), Mr. Kenneth M. Stine, subsequent to submission of cause to Juror, and prior to deliberation while in Court Room, that said alternate Juror then replaced Juror number Six (6), Mr. Stine, who had separated himself after submission, which motion for mistrial is now by the Court overruled.'
Seven days subsequent to rendition of the verdict, the defendant orally moved the court to interrogate the alternate juror concerning matters occurring subsequent to the submission to the jury. This motion was granted and the testimony of the juror heard, but it does not appear in the record. Upon said testimony, the court entered a finding that the alternate juror had not been influenced in any manner by evidence which had not been properly submitted.
We find no showing of harmful error from the foregoing. The naked allegation of the defendant in his motion for a mistrial charging that the alternate juror had been exposed to improper influences does not make it true. The evidential hearing one week later, we presume, was an attempt by the court to determine if there was any basis in fact for the charge, and it was determined that there was none. The record presents nothing to the contrary. If the proceedings appear to have been irregular, the burden is, nevertheless, upon the appellant to show that he was thereby harmed. Pinkerton v. State (1972), Ind., 283 N.E.2d 376; Calvert v. State (1968), 251 Ind. 119, 239 N.E.2d 697; Messersmith v. State (1940), 217 Ind. 132, 26 N.E.2d 908.
The parties have dwelled at some length upon the absence of anything in the record to indicate that the trial court complied with the provisions of 1968 Repl. Burns Ind.Stat.Ann. § 4--7122, Acts of 1937, ch. 295, § 1 (Repealed by Acts of 1969, ch. 191, § 3), requiring that in cases where there have been two or more alternate jurors and it becomes necessary to substitute but one, the selection of the substitute should be by lot. We do not comprehend how any error could have arisen in this regard, as here there was but one alternate juror.
(2) Subsequent to the commission of the crime and prior to the trial, State's witness, Clarine Jones, who was the mother of the decedent and the only eye witness to the crime, had been awarded custody of the four children of the defendant and the decedent. She was drawing $300.00 per month for their maintenance from the Department of Public Welfare. This had been previously disclosed in evidence as well as had the fact that she had quit her former employment to care for the children and that the support allowance constituted her only income. On cross examination, the following dialogue occurred:
Question by Mr. Bloom (defense counsel):
'So would it then be accurate to say that you are then providing your own shelter and your own food and clothing, medical expense, and all other incidental expenses for yourself out of what the taxpayers pay you for these children?'
Mr. Helmke (prosecutor):
'It is wholly irrelevant and immaterial and I would ask that defense counsel be admonished.'
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