Polson v. State
| Decision Date | 10 June 1965 |
| Docket Number | No. 30548,30548 |
| Citation | 246 Ind. 674,207 N.E.2d 638 |
| Parties | Clarence POLSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jack W. Broadfield, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.
Appellant appeals from the judgment rendered on the verdict of the jury convicting him of sodomy for which he was fined in the sum of $100.00 and imprisoned two to fourteen years in the Indiana State Prison. Error is assigned on the overruling of motion for new trial.
Appellant first complains on this appeal that the court erred in overruling his objection to a leading question asked on direct examination by the State. However, there is no showing by appellant in the motion for new trial the this question was ever answered by the witness. In order for prejudicial error to be committed in the overruling of an objection to a leading question, it would be necessary that such question be answered by the witness. In view of the failure of appellant to show in the motion for new trial that such question was answered by the witness there is no question here presented. See: Henderson v. State (1956), 235 Ind. 132, 134, 131 N.E.2d 326, 327, (cert. den.) Henderson v. Thompson 351 U.S. 958, 76 S.Ct. 855, 100 L.Ed. 1480; Ray v. State (1954), 233 Ind. 495, 499, 120 N.E.2d 176, 178, 121 N.E.2d 732; F. W. & H., Indiana Trial and Appellate Pract., Sec. 1812, p. 388.
Appellant further contends error was committed by the trial court in admonishing appellant's counsel during the cross-examination of Jerry Heaton, viz: '* * * you are to cease from that line of questioning.'
While there is considerable doubt that appellant has properly brought bfore us a ruling of the trial court so that we may review it on appeal, if we overlook such procedural defects or omissions, it appears that appellant is complaining of the sustaining by the trial court of objections to three questions asked by appellant's counsel on cross-examination. They were:
'Q. * * * have you done it [unnatural acts] with other men?
* * *
* * *
'Q. Are you a little behind in school?
* * *
* * *
We are unable to conclude the court committed error. The first question inquiring of the witness as to unnatural acts with other men could properly have been held by the trial court to be objectionable in our judgment, as the general rule is a witness cannot be impeached by attempting to show specific acts of immorality. Griffith v. The State (1895), 140 Ind. 163, 166, 39 N.E. 440, 441; Bessette v. The State (1885), 101 Ind. 85, 88.
It would have been proper of course, as affecting the witness's credibility to show on cross-examination that has general moral character was not good. The extent of cross-examination is a matter within the trial court's sound discretion, and we do not believe under the facts of this case appellant brought himself within any exception to the rule as would warrant us in concluding such discretion was abused.
As to the second question as to whether the witness was behind in school, appellant has made no argument as to its relevancy. In view of the trial court's wide area of discretion as to the extent of crossexamination, we do not see that it was here so abused as to warrant reversal of the judgment.
The third question asking what the father had told the witness obviously called for a hearsay answer, and therefore the court committed no error in sustaining the objection to it.
We find no reversible error.
Judgment affirmed.
It occurs to me that the authorities cited and relied upon by both the appellant and the State require further clarification.
As noted in the opinion, we are here concerned with a morals charge of sodomy. The prosecuting witness, a boy of 15 years of age, was questioned on cross-examination as to the fact of unnatural acts with other men. As I interpret it, the court's opinion, without indicating that there are exceptions thereto, relies upon the general rule that 'a witness cannot be impeached by attempting to show specific acts of immorality', that such interrogation must be limited to 'proof of general reputation.' The cases of Griffith v. The State (1895), 140 Ind. 163, 39 N.E. 440, and Bessette v. The State (1885), 101 Ind. 85, are cited as supporting the proposition.
However, I think that the opinion should recognize the fact that there are exceptions to this general rule, one of which is recognized in the Bessette case, supra, relied upon in the court's opinion. The Bessette case, as does this case, involves a sexual offense. In this case the charge was sodomy. In the Bessette case, the offense was statutory rape. In the Bessette case, it developed that at the examination regarding the offense, before a justice of the peace, the prosecuting witness testified that the act took place at a locus and under circumstances which proved to be false. Then later, at the trial, she testified that the act took place under wholly different circumstances. During cross-examination of the prosecuting witness, the defense propounded numerous questions not limited to 'proof of general reputation' but regarding the conduct of the prosecuting witness, which questions were designed to prove that she was of 'debased and depraved condition of mind' and that the prosecution may have been instigated for the purpose of extortion. The trial court rejected all such testimony.
However, on appeal, this court held that under the circumstances, the rejection of such testimony constituted an abuse of discretion. This court, in reversing the trial court in the Bessette case, stated:
'The extent to which a cross-examination may be carried, in the direction indicated by the questions, is ordinarily...
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...United States, 801 A.2d 72, 80-81 (D.C.2002), cert. denied, 537 U.S. 963, 123 S.Ct. 396, 154 L.Ed.2d 319 (2002) ; Polson v. State, 246 Ind. 674, 207 N.E.2d 638, 640 (1965). To be relevant, the cross-examination must evidence an "impairment" of the witness's "ability to comprehend, know, and......
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