Raines v. State, 969S215

• Decision Date: 13 May 1971
• Docket Number: No. 969S215,969S215
• Citation: 269 N.E.2d 378,256 Ind. 404
• Parties: William Ruben RAINES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 378

269 N.E.2d 378

256 Ind. 404

William Ruben RAINES, Appellant, v. STATE of Indiana, Appellee.

No. 969S215.

Supreme Court of Indiana.

May 13, 1971.

Rehearing Denied Aug. 3, 1971.

Jerome E. Levendoski, Kenneth M. Waterman, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Lon D. Showley, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged by indictment with the crime of second degree murder. Trial by jury resulted in a finding of guilty. Appellant was sentenced to the Indiana State Prison for life. Previously a trial by jury resulted in a verdict of guilty as charged, from which the appellant appealed to this Court. This Court in an opinion rendered October 15, 1968, reversed that decision and ordered a new trial. See Raines v. State (1968), 251 Ind. 248, 240 N.E.2d 819, 15 Ind.Dec. 484.

The record in this case discloses the following facts:

On the afternoon of June 18, 1966, the decedent, Earl Shanks, and the appellant, William Ruben Raines, were assigned the same room in the Volunteers of America Home at 840 Hayden Street, Fort Wayne, Indiana. At the time the two men went to their room the houseman noted they were 'a little inebriated.' About 7:00 o'clock the houseman, Wilbur Hayworth, saw the decedent come downstairs to the restroom and return to the room upstairs. About 9:00 o'clock the same evening Hayworth observed the appellant standing in the hall by the restroom door and noticed an object lying on the floor. He asked the appellant what the object was, to which he replied, 'That's nothing but a sheet.' This object turned out to be a bloodstained sheet which came from the decedent's room. The appellant then inquired where he could find a good spot in town for some entertainment and asked Hayworth to call a cab for him. Hayworth testified that the cab picked the appellant up at about 9:40 to 9:45.

At 8:00 o'clock the next morning while making his rounds, Hayworth found the deceased lying in his bed on a blood soaked mattress. The Deputy Coroner, Dr. Stanley Swinton, determined at 9:00 A.M. that the deceased had been dead about twelve hours, and that he had died from a wound in his neck which had severed the carotid artery. Hayworth further testified he found a paring knife on the ground outside the bathroom window, and that there was a small hole in the screen in the window. He further testified he found a pair of men's shorts on the floor of the shower in the bathroom. Both the shorts and the paring knife were tested, and it was discovered they were stained with human blood.

When the appellant was taken into custody, he had bloodstains on his ankle, which he stated came from a sore; however, there were no sores on his body. This blood was also tested and found to be human blood. Also, on the morning following the death of the decedent the appellant was first seen wearing a pair of unmatched shoes, one of which was determined to be his own and the other that of the decedent, which shoes he attempted to hide. Upon examination it was determined these shoes were spotted with human blood. There were also blood stains upon appellant's trousers, shirt and one of his socks.

Appellant first claims reversible error in that the trial court admitted into evidence the testimony of Dr. Stanley Swinton as contained in the transcript of the former trial of this cause. As a foundation for the introduction of this transcript of testimony, the State established that Dr. Swinton was in Ft. Lauderdale, Florida; that he was unavailable to testify in the case at bar; that among other reasons for his absence, he was under a subpoena by a Florida criminal court to testify in a pending case there; that the State had diligently attempted to obtain Dr. Swinton's personal attendance at the trial, but that there was no procedure available to compel his attendance under the circumstances. Appellant cites the case of Levi v. State (1914), 182 Ind. 188, 104 N.E. 765, 105 N.E. 898, in support of his position that the State did not lay sufficient grounds to warrant the introduction of the transcribed evidence. However, in the Levi case this Court acknowledged the existence of authority that where the transcript of evidence which the State seeks to introduce was taken at a former trial where the defendant had been afforded an opportunity to confront and cross-examine the witness, the evidence is admissible where the witness is permanently or indefinitely absent from the state and beyond the jurisdiction of the court in which the case is pending, and that this evidence is acceptable especially if it is necessary to prevent a miscarriage of justice, which question is directed to the sound discretion of the trial court.

The Court then pointed out in the Levi case that the facts there did not bring it within these exceptions; that there had been no showing that the State could not obtain the attendance of the witnesses nor had they given...