Reynolds v. State

Citation147 Ind. 3, 46 N.E. 31
Case DateFebruary 04, 1897
CourtSupreme Court of Indiana

147 Ind. 3
46 N.E. 31

REYNOLDS
v.
STATE.

Supreme Court of Indiana.

Feb. 4, 1897.


Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Embree Reynolds was convicted of robbery, and appeals. Affirmed.

[46 N.E. 32]


Reynolds & Sills and J. C. Herron, for appellant.
W. A. Ketcham, Atty. Gen., B. F. Harness, and Blacklidge & Shirley, for the State.

MONKS, J.

The indictment against appellant was in three counts. The first charged appellant and one Hawley with the crime of robbery, under section 1987, Rev. St. 1894 (section 1914, Rev. St. 1881). The second and third counts charged the offense of assault and battery with intent to commit the crime of robbery, under section 1982, Rev. St. 1894 (section 1909, Rev. St. 1881). There was a separate trial of appellant by a jury, and a verdict of guilty returned as charged in the first count in the indictment; and, over a motion for a new trial, judgment was rendered upon the verdict.

The only error assigned and not waived calls in question the action of the court in overruling the motion for a new trial. The first cause assigned for a new trial is misconduct of counsel for the state in his opening statement to the jury. It appears from the record that Frederick Hawley, who was jointly indicted with appellant, testified as a witness on behalf of appellant. Counsel for the state, in his opening statement, anticipating the defense of alibi, said, in substance, that if Hawley testified as a witness the state would show, as affecting his credibility as a witness, that after he was arrested he said that he was at home with his father and mother on the night when the crime charged was committed; that he lied about his whereabouts immediately after his arrest; and that, after the falsity of his statement was made apparent, he called to his aid, by means of a written communication, one of the most disreputable prostitutes of the town, to induce her to swear that he had slept with her all that night, and therefore could not have been present. Counsel objected to this statement for the reason that what Hawley said was after the of fense was committed, and not in the presence of appellant; that the state has no right to anticipate what Hawley will testify to as a witness, and can only state to the jury what the prosecution expects to prove in the first instance,-that is, in chief,-and not what the state may expect to prove if this witness or that witness testifies by way of rebuttal or impeachment. Counsel for the state also said: “I think the jury understand me,-that my statement is not testimony. I don't claim it as testimony. I certainly have the right to say what our answer will be to Hawley, and it is due to the defense for us to tell what our answer will be to him in the event that he should make the claim on the witness stand as we understand he made to the officer when he was arrested.” The court overruled said objection, and admonished the jury that the statements by the counsel for the state should not in any wise affect the defendant; that such evidence, if it becomes admissible, would only go to the credibility of Hawley, if he testified in the case. Counsel for appellant thereupon moved the court that the case be withdrawn from the further consideration of the jury, and that the jury be discharged, which motion the court overruled. While the state is not required, in an opening statement, to anticipate the defense of alibi, or any other defense, yet the appellant had no grounds to complain, because the opening statement to the jury advised him in advance of evidence the state expected to give in rebuttal, or by a cross-examination of his witness. Hawley testified as a witness, and his testimony and other evidence in the case strongly tended to support the statement to which objection was made. Even if such statement had not been sustained by the evidence, appellant would not be entitled to have the verdict set aside for that reason. The jury had been informed that the statement was not evidence, and we must ascribe to jurors ordinary intelligence. Under the facts shown by the record, the statement was not such as would justify a reversal, under the rule established in this state, even though no evidence were subsequently given to sustain the same. Livingston v. State, 141 Ind. 131, 40 N. E. 684, and cases cited; Combs v. State, 75 Ind. 215. Besides, the scope of an opening statement, and whether the plaintiff in a case may anticipate a defense, and state what will be shown in rebuttal, or that, if certain persons testify, evidence will be given to impeach them, rests largely in the discretion of the trial court, and the same will not be reversed unless there has been a clear abuse of such discretion. Combs v. State, supra, on page 220, and cases cited. The trial court did not err in overruling appellant's objections or his motion to discharge.

One cause assigned for a new trial is that the court erred in refusing to permit appellant to prove by himself and other witnesses that he owned 20 acres of land in White county, of the value of $800, when the offense was committed. This evidence was offered on the theory that it would show the absence of motive, and the case of Cavender v. State, 126 Ind. 50, 25 N. E. 875, is cited by appellant to sustain this contention. In that case it appeared that the evidence was wholly circumstantial, and that the defendant had an unblemished reputation, and the court held that the evidence was not sufficient to sustain a conviction. The question of the admissibility of evidence was not presented or considered in that case. It is well settled that proof of a motive is not indispensable to a conviction of crime. 1 Bish. Cr. Proc. § 1107; Stitz v. State, 104 Ind. 359, 361, 4 N. E. 145, and authorities cited. If evidence that appellant was worth $800 in real estate was admissible for the purpose of showing that he had no motive, then

[46 N.E. 33]

it would seem that it would be competent for the state to prove, as showing motive,...

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45 practice notes
  • Parsons v. State, 6 Div. 697.
    • United States
    • Supreme Court of Alabama
    • December 23, 1948
    ...nature that one possessed of substantial values in property is usually not satisfied, and wants more. It was held in Reynolds v. State, 147 Ind. 3, 46 N.E. 31, 33, that in a prosecution for robbery evidence that defendant is possessed of certain valuable property is not admissible. It was s......
  • Haverstick v. State, No. 24727.
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1925
    ...for reversing the judgment, in the absence of a proper request for instructions covering the omitted legal proposition. Reynolds v. State, 147 Ind. 3, 10, 46 N. E. 31;Epple v. State, 190 Ind. 87, 90, 129 N. E. 403;Chesterfield v. State (Ind. Sup.) 141 N. E. 632. [6] The misdemeanor defined ......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...defendant's motive instructions includes the citation of Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157, and Reynolds v. State (1897), 147 Ind. 3, 46 N.E. 31, in support of the often repeated statement proof of motive is not essential to a conviction. Neither of those cases involved the......
  • State v. Allen
    • United States
    • United States State Supreme Court of Idaho
    • May 8, 1913
    ...278; 12 Cyc. 538.) Testimony as to the financial standing of the defendant is not admissible to show absence of motive. (Reynolds v. State, 147 Ind. 3, 46 N.E. 31, 32; Colter v. State, 37 Tex.Crim. 284, 39 S.W. 576.) Conversations are not part of the res gestae for proving an alibi. (People......
  • Request a trial to view additional results
45 cases
  • Parsons v. State, 6 Div. 697.
    • United States
    • Supreme Court of Alabama
    • December 23, 1948
    ...nature that one possessed of substantial values in property is usually not satisfied, and wants more. It was held in Reynolds v. State, 147 Ind. 3, 46 N.E. 31, 33, that in a prosecution for robbery evidence that defendant is possessed of certain valuable property is not admissible. It was s......
  • Haverstick v. State, No. 24727.
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1925
    ...for reversing the judgment, in the absence of a proper request for instructions covering the omitted legal proposition. Reynolds v. State, 147 Ind. 3, 10, 46 N. E. 31;Epple v. State, 190 Ind. 87, 90, 129 N. E. 403;Chesterfield v. State (Ind. Sup.) 141 N. E. 632. [6] The misdemeanor defined ......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1974
    ...defendant's motive instructions includes the citation of Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157, and Reynolds v. State (1897), 147 Ind. 3, 46 N.E. 31, in support of the often repeated statement proof of motive is not essential to a conviction. Neither of those cases involved the......
  • State v. Allen
    • United States
    • United States State Supreme Court of Idaho
    • May 8, 1913
    ...278; 12 Cyc. 538.) Testimony as to the financial standing of the defendant is not admissible to show absence of motive. (Reynolds v. State, 147 Ind. 3, 46 N.E. 31, 32; Colter v. State, 37 Tex.Crim. 284, 39 S.W. 576.) Conversations are not part of the res gestae for proving an alibi. (People......
  • Request a trial to view additional results

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