Richard v. State

• Decision Date: 27 November 1974
• Docket Number: No. 873S148,873S148
• Citation: 262 Ind. 534,319 N.E.2d 118
• Parties: Hilton RICHARD, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 118

319 N.E.2d 118

262 Ind. 534

Hilton RICHARD, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 873S148.

Supreme Court of Indiana.

Nov. 27, 1974.

Rehearing Denied Feb. 3, 1975.

John H. Sweeney, Sweeney, Fox, Sweeney, Winski & Dabagia, Michigan City, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Judge.

Defendant (Appellant) was charged with murder in the first degree, murder in the second degree and voluntary manslaughter. He was convicted by jury of murder in the second degree and sentenced to imprisonment for an indeterminate term of fifteen (15) to twenty-five (25) years. His appeal presents four issues.

(1) The constitutionality of Acts of 1905, ch. 169, § 264, also being Burns Ind.Stat. § 9--1809, and IC 37--1--37--3, which authorizes the jury to view the place in which any material fact occurred with the consent of all parties.

(2) The legality of permitting defendant's wife to testify to conversations allegedly within the marital privilege.

(3) The legality of the giving of an instruction on 'flight,' it being alleged that there was no evidence of flight presented.

(4) The sufficiency of the evidence to support the verdict.

ISSUE I. The defendant moved to have the jury view the scene of the crime, and the court denied motion by reason of the statute, which provides:

'9--1809. Inspection of place.--Whenever, in the opinion of the court and with the consent of all the parties, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the officer and the person appointed to show them the place, shall speak to them on any subject connected with the trial. (Acts 1905, ch. 169, § 264, p. 584.)'

It is the defendant's contention that the statute is an unconstitutional legislative encroachment upon an inherently judicial function and denied the defendant a fair trial.

This Court has previously questioned the right of the Legislature to impose this statute upon the courts. Robinson v. State (1973), Ind., 297 N.E.2d 409, 412. However, in that case, we also indicated a reluctance to abrogate it retrospectively. By acquiescence in its proscriptions, we have impliedly adopted it as a trial rule. We further expressed a special reluctance to strike it down retrospectively in that particular case, where the effect would have been to deny a new trial to one convicted under highly suspect circumstances. We are just as reluctant to strike it down under the circumstances of this case, where the effect would be to require a new trial to one convicted by substantial and persuasive evidence and with no indication that a view of the scene would have altered the result. The defendant asserts that his right to a fair trial is a substantive right, guaranteed by the Indiana Constitution and that the General Assembly has denied him that right by encroaching upon the courts' inherent power to order a jury view, while at the same time acknowledging that whether or not to permit such a view is the prerogative of the court. That the defendant had a substantive right to a fair trial is not questioned, but the court can no more deny that right than can the Legislature. The basic question then is whether or not a defendant in a criminal action has a substantive right to have the jury view the scene. This can be answered in the affirmative only if we can say that a view is essential to a fair trial. We believe that it is not and have been cited to no authority to the contrary. Although we have declared that the rule was illegitimately begotten, we have thus far recognized it as our own. Robinson v. State (supra); Shular v. State (1886), 105 Ind. 289, 4 N.E. 870; Barber v. State (1927), 199 Ind. 146, 155 N.E. 819.

ISSUE II. Defendant and his wife were separated. On the day of the crime, he telephoned her and told her that if the decedent did not leave him alone, he would blow his head off and that she should rely this information to the decedent. When asked about this conversation at the trial, she refused to answer, claiming the marital privilege, but the defendant interposed no objection. The court ordered her to answer, which she did, and he urges this as error.

Although spouses were once precluded from testifying for or against each other and were thus incompetent, under our statute, the matter is both one of privilege and one applying only to confidential communications gained by reason of the marital relationship. Shepherd v. State (1971), 257 Ind. 229, 277 N.E.2d 165, 166--167. Being a matter of privilege, it is subject to waiver. Having failed to object at the trial, the error, if any, was waived. Subject to limited exceptions with which we are not here concerned, error not objected to at the trial will not be reviewed on appeal. Beck v. State (1974), Ind., 308 N.E.2d 697; McMinoway v....