Richard v. State, No. 873S148

Docket NºNo. 873S148
Citation262 Ind. 534, 319 N.E.2d 118
Case DateNovember 27, 1974
CourtSupreme Court of Indiana

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.

Page 119

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.

[262 Ind. 535] (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.

[262 Ind. 536]

Page 120

The defendant asserts that his right to a fair trial is a...

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12 practice notes
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1985
    ...within the discretion of the trial court. Carroll v. State, (1982) Ind., 438 N.E.2d 745, 749; See Richard v. State, (1974) 262 Ind. 543, 319 N.E.2d 118, reh. denied. A jury's view of a place is not intended as evidence, but is simply to aid the jury in understanding the evidence. Carroll, s......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Diciembre 1982
    ...his allegation of error by failing to object at trial. Gosnell v. State, (1978) 268 Ind. 429, 376 N.E.2d 471; Richard v. State, (1974) 262 Ind. 534, 319 N.E.2d Officer Burke was also asked whether he knew Richard Nunn's reputation for truthfulness in the community. Over defendant's objectio......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Agosto 1979
    ...work not called for under the Juday contract. Snyder had no substantive right to have the jury view the premises. Richard v. State (1974), 262 Ind. 534, 319 N.E.2d 118. Moreover, in [182 Ind.App. 30] reviewing the court's exercise of discretion it should be recalled that a view is not inten......
  • Richard v. State, No. 277S141
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Noviembre 1978
    ...Court of the second-degree murder of David Turner in October, 1971. His conviction was affirmed by this court. Richard v. State, (1975) 262 Ind. 534, 319 [269 Ind. 609] N.E.2d 118. Appellant filed a petition for post-conviction relief pursuant to Ind.R.P.C. 1 in the LaPorte Superior Court o......
  • Request a trial to view additional results
12 cases
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Enero 1985
    ...within the discretion of the trial court. Carroll v. State, (1982) Ind., 438 N.E.2d 745, 749; See Richard v. State, (1974) 262 Ind. 543, 319 N.E.2d 118, reh. denied. A jury's view of a place is not intended as evidence, but is simply to aid the jury in understanding the evidence. Carroll, s......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Diciembre 1982
    ...his allegation of error by failing to object at trial. Gosnell v. State, (1978) 268 Ind. 429, 376 N.E.2d 471; Richard v. State, (1974) 262 Ind. 534, 319 N.E.2d Officer Burke was also asked whether he knew Richard Nunn's reputation for truthfulness in the community. Over defendant's objectio......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Agosto 1979
    ...work not called for under the Juday contract. Snyder had no substantive right to have the jury view the premises. Richard v. State (1974), 262 Ind. 534, 319 N.E.2d 118. Moreover, in [182 Ind.App. 30] reviewing the court's exercise of discretion it should be recalled that a view is not inten......
  • Richard v. State, No. 277S141
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Noviembre 1978
    ...Court of the second-degree murder of David Turner in October, 1971. His conviction was affirmed by this court. Richard v. State, (1975) 262 Ind. 534, 319 [269 Ind. 609] N.E.2d 118. Appellant filed a petition for post-conviction relief pursuant to Ind.R.P.C. 1 in the LaPorte Superior Court o......
  • Request a trial to view additional results

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