Reynolds v. The State

Decision Date04 February 1897
Docket Number18,125
Citation46 N.E. 31,147 Ind. 3
PartiesReynolds v. The State
CourtIndiana Supreme Court

From the Howard Circuit Court.


Reynolds & Sills, and J. C. Herron, for appellant.

W. A Ketcham, Attorney-General, B. F. Harness, J. C. Blacklidge and C. C. Shirley, for 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, Burns' R. S. 1894 (1914, R. S. 1881). The second and third counts charged the offense of assault and battery with intent to commit the crime of robbery, under section 1982, Burns' R. S. 1894 (1909, R. S. 1881). There was a separate trial of appellant by jury, and a verdict of guilty returned as charged in the first count of 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 offense 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 statements 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, rest largely in the discretion of the trial court, and the cause will not be reversed, unless there has been a clear abuse of such discretion. Combs v. State, supra, on p. 220, and cases cited.

The trial court did not err in overruling appellant's objection, or his motion to discharge the jury.

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 twenty acres of land in White county, of the value of $ 800.00, 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. 47, 25 N.E. 875, is cited by appellant to sustain this contention. In that case it appeared that the evidence was wholly circumstantial, 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 Bishop Crim. Proced., section 1107; Stitz v. State, 104 Ind. 359, 4 N.E. 145, and authorities cited.

If evidence that appellant was worth $ 800.00 in real estate was admissible for the purpose of showing that he had no motive, then it would seem that it would be competent for the State to prove, as showing motive, that he had no property, or only a small amount of property. It would resolve itself into the proposition that men who are poor are constantly under the temptation to rob their more fortunate neighbors, and that they need only the opportunity to yield to the temptation. In other words, proof of poverty tends to show a motive for the crime of larceny or robbery, while proof of riches tends to show a want of motive. Among the motives recognized as impelling men to commit crime is the desire of gain. Stitz v. State, supra; Wills on Cir. Ev., 39; Burrell on Cir. Ev. 281. This motive, however, has influenced the conduct of rich persons as well as poor persons. Men do not rob or steal except as they have a desire to do so; but such desire does not come so much from the poverty of the individual as from the absence of a moral sense, and desire to possess at all hazards something that does not belong to him. The evidence was properly excluded from the jury.

The next cause specified for a new trial is that the court erred in permitting Mrs. Ellis, wife of the prosecuting witness, to testify as to statements made by her husband. It appears from the record that Ellis, the prosecuting witness, testified that he recognized appellant as one of the persons who committed the robbery. To impeach this witness, evidence was given on behalf of appellant that Ellis had, after the occurrence, stated that he did not recognize appellant as one of his assailants. Thereupon, to sustain said witness, the court permitted the State to show by a number of witnesses, including his wife, that he had made statements, in harmony with his testimony, that he had recognized appellant as one of the persons who committed the robbery. There is nothing in the record showing that other persons were not present when the prosecuting witness made the statement testified to by his wife; on the contrary, it appears that he was brought home by two persons after he was robbed, and that he made the statement testified to as soon as he was brought home. It would seem from this that the persons who brought him home heard the statement. Under such circumstances, the statement could not be regarded as confidential. The rule is that conversations between husband and wife in the presence of third persons may be testified to by the husband or wife, if they are material. Mercer v. Patterson, 41 Ind. 440, and cases cited; Mainard v. Reider, 2 Ind.App. 115, 28 N.E. 196; Lyon v. Prouty, 154 Mass. 488, 28 N.E. 908.

Even if said statement was made by the husband to his wife when no other person was present, it was not such a communication as is rendered incompetent under our statutes. Beitman v. Hopkins, 109 Ind. 177, 9 N.E. 720, and cases cited; Beyerline v. State, post, 125.

It is urged that the court erred in giving instructions two, three and seven of its own motion, and in refusing to give an instruction asked by appellant. In instruction one, the court gave to the jury an accurate statement of each count in the indictment, and the force and effect of each. Instruction two given to the jury was a copy of section 1987, Burns' R S. 1894, defining the crime of robbery and fixing the punishment therefor. Counsel for appellant insist that "this instruction was incomplete because the court did not copy and read in connection therewith section 1982, Burns' R. S. 1894, which defines the offense of assault and battery with intent to commit a felony and fixing the punishment therefor, being the section upon which the second and third counts were based; that the court should have instructed the jury that under the second and third counts they might, if the evidence required it, find the appellant guilty of assault or assault and battery with the intent charged, or that they might find him guilty of an assault and battery only,...

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