Pinkston v. State

• Decision Date: 25 October 1968
• Docket Number: No. 168S15,168S15
• Parties: Robert W. PINKSTON, alias Robert Johnson, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 138

241 N.E.2d 138

251 Ind. 306

Robert W. PINKSTON, alias Robert Johnson, Appellant, v. STATE of Indiana, Appellee.

No. 168S15.

Supreme Court of Indiana.

Oct. 25, 1968.

William H. Williamson, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Rex P. Killian, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

This is an appeal from a conviction of the appellant for the crime of violating the 1935 Narcotic Act, as amended. It was specifically alleged in Count One of the Affidavit that the appellant had been the illegal possessor of a narcotic drug, to-wit: Morphine Sulphate. The conviction was rendered by the Court without the intervention of a jury.

In his brief the appellant alleges several errors committed by the Trial Court which he contends should authorize this Court to reverse the conviction. However, this Court may not consider all of these alleged errors.

The pertinent parts of the appellant's Motion for New Trial read as follows:

'Comes now the defendant, Robert Pinkston, in the above entitled cause and moves the court for a new trial thereof, upon the following grounds and for the following reasons:

1. That the court erred at law in overruling defendant's objection to State's Exhibit No. 1.

2. That the finding of the court is contrary to law.

3. That the finding of the court is not sustained by sufficient evidence.

WHEREFORE, the defendant prays the court for a New trial of said cause of action.'

The pertinent part of Indiana Supreme Court Rules (1967), Rule 2-6, reads as follows:

'In all cases in which a motion for a new trial is the appropriate procedure preliminary to an appeal, such motion shall be filed and shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing of such motion, and an assignment of error on appeal to the effect that the trial court erred in overruling said motion shall be the only means of raising said asserted errors on appeal. In all other cases and in cases of asserted errors arising subsequent to the filing of the motion for a new trial, such asserted errors may be assigned independently. Amended June 28, 1960. Effective September 1, 1960, and shall apply only to cases filed on or after such effective date.'

Therefore, any errors known to appellant, or those which may have been discovered with reasonable diligence, at the time of the filing of his motion for new trial, must be specifically alleged in the motion, or they may not be considered by this Court on appeal. Bond v. State, (1927), 199 Ind. 484, 158 N.E. 241.

Only those errors as enumerated in appellant's Motion for New Trial may be considered. Assigned error number one concerns the introduction into evidence of State's Exhibit #1. This exhibit was a bottle of morphine tablets found under the front seat of the automobile which the appellant was driving. The following excerpt is from the testimony given by the State's first witness (the officer who discovered the bottle) when he was confronted with the exhibit for the first time, i. e., when the exhibit was introduced into evidence.

'Q. Did you personally find anything in the vehicle?

A. Yes, sir, I found a bottle containing approximately four hundred white pills, under the front seat on the driver's side.

MR. SMITH: I move that be stricken as a voluntary statement.

THE COURT: Overruled.

Q. What did you do with this bottle?

A. I opened the bottle by unscrewing the cap and examined the contents and observed it was in fact white pills. I observed also the label on the front of the bottle.

Q. Officer, I will hand you a package and ask that you open this in the presence of the court. At this time, Lt. Jones, I will show you what purports to be a bottle and ask if you can identify it. This is marked State's Exhibit No. 1.

A. Yes, sir, I can identify it.

Q. Would you tell the court what it is?

A. Yes, sir, this is the bottle I removed from under the front seat, the driver's side, of Defendant Pinkston's automobile he was driving December 3, 1964.

Q. Is this the self same bottle that contained the white tablets you testified about further?

A. Yes, sir, my initials and the date appear on the face of the bottle.

Q. What did you do with the bottle containing the tablets, if anything?

A. I observed the other members of the Narcotic Squad initial it and it was turned over to Narcotic Agent, Mr. Bankin.

Q. Have you seen it subsequently since it was turned over to the Federal Narcotic Agent?

A. I have not.

Q. Did you discover anything else in the automobile?

A. I did not, personally, no sir.'

From reading this testimony it is manifest that the only objection made was to the witness' answer, but no objection was made to the exhibit itself. It is elementary that the objection must be made timely in order to preserve an error for appeal. Eiffe v. State (1948), 226 Ind. 57, 77 N.E.2d 750; Beeler v. State (1952), 230 Ind. 444, 104 N.E.2d 744; Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570. Here there was no objection made to the exhibit nor does the record reveal that any Motion to Suppress Evidence was ever filed in this cause.

In his brief, appellant argues that there was insufficient probable cause to make the arrest without a warrant. Therefore, any search made incidental to such an arrest at that time was a violation of the appellant's rights against unreasonable search and seizure. In effect, he is attempting to attack the introduction into evidence of this exhibit. However, this argument, in the form of a motion to suppress or a timely objection made at the trial, was not made before this appeal. It is made for the first time in the appellant's brief.

Therefore, we must rule that appellant's first assigned error, in his Motion for New Trial, may not be considered by this Court.

'* * * no objections were made thereto at the time. A party may not sit idly by and make no objections to matters he might consider prejudicial, awaiting the outcome of a trial, and thereafter raise such question for the first time. Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629; Kern v. Bridwell (1889), 119 Ind. 226, 21 N.E. 664.' Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523.

Appellant's second assigned error simply states that the finding of the court is contrary to law. This phrase has been interpreted in Hamilton v. State (1934), 207 Ind. 97, 190 N.E. 870 thusly:

"* * * it is contrary to law, 'when, in its general scope and meaning, it is contrary to the principles of law applicable to the case, and not merely defective in some particular.' * * * 'A motion for a new trial on the ground that the verdict or decision is contrary to law is in the nature of a demurrer to the evidence. It admits all the evidence given upon the trial, but says that, as the verdict or decision based upon such evidence is contrary to the general principles of the law applicable to the issues involved, judgment should not be rendered thereon.'

"We hold in accordance with the abovequoted statements, that a contention that a verdict is contrary to law is in effect a contention that, if the general principles of law applicable to the evidence in this case be applied, a different conclusion will necessarily be reached." Quoting with authority from Gaines v. Taylor (1933), 96 Ind.App. 378, 185 N.E. 297, 299.

Therefore, in determining whether or not the finding in this case was contrary to law, we must look to the evidence in order to determine what the facts are. This will also aid us in passing on appellant's last assigned error, that being that the finding of the court was not sustained by sufficient evidence.

On the evening of December 3, 1964, agents of the Indianapolis Police Department and the Federal Narcotics Agency were keeping under surveillance an intersection in the city of Indianapolis. They had been investigating the appellant for a possible narcotics violation. An informer had related to these officers that...