Richardson v. State
| Decision Date | 04 February 1971 |
| Docket Number | No. 168S13,168S13 |
| Citation | 24 Ind.Dec. 474,255 Ind. 655,266 N.E.2d 51 |
| Parties | Mary RICHARDSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Palmer K. Ward, Indianapolis, for appellant.
John J. Dillon, Former Atty. Gen., Duejean C. Garrett, Former Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of the crime of perjury upon a plea of not guilty and without the intervention of a jury. She was sentenced to the Indiana Women's Prison for the period of not less than one nor more than ten years.
The evidence in this case is as follows:
During the month of August, 1966, the Marion County Grand Jury was conducting an investigation of prostitution, pandering and related crimes which were reported to be occurring in an area in Indianapolis known as the 'strip.' On August 24, 1966, the appellant, Mary Richardson, was called as a witness to testify before the grand jury and was questioned as to her knowledge of the various criminal activities on the 'strip.' The grand jury foreman testified that as a part of her testimony of August 24 Mary Richardson stated that she had never met nor seen a person named Dorothy Tucker. That her only knowledge of such a person was an article she had read in the newspaper. She also stated that she had never known a person named Faith Adams nor anyone who went by that name.
Officer Collins of the Indianapolis Police Department testified that on the night of July 7, 1966, he had seen the appellant, Mary Richardson, in the company of Dorothy Tucker who was known as Faith Adams. On his first encounter with the two women he ordered them to get off of the street and go home. This they apparently failed to do because later the same evening Officer Collins again encountered the two women, at which time he arrested them.
Dorothy Tucker also known as Faith Adams testified that appellant's boy friend had introduced her to the appellant as Dorothy Tucker. She further stated that she and appellant were together on occasion during the summer of 1966, and that they were arrested together on or about July 7, 1966. She also stated that she and the appellant had lived together two or three days in the early part of August of 1966. That the appellant also knew her as Faith Adams and from time to time would refer to her as either Faith or Dorothy. She stated that the appellant knew her by those names on August 24, 1966.
This Court has long recognized that if testimony alleged to be false is of no importance and immaterial it cannot be made the basis for a charge of perjury. However, in the case at bar the grand jury was in the process of investigating prostitution and related crimes in the 'strip' area of Indianapolis when the appellant was asked if she knew a person by the name of Dorothy Tucker alias Faith Adams, who the witness knew to be one of the subjects of the investigation before the grand jury. The trier of fact was justified in finding that her false answer to the grand jury was calculated to furnish a shield to the identity of Dorothy Tucker and her activities. It was reasonable for the trial court to infer that the answer to the question was deceptive and calculated to be influential upon the grand jury. State v. Kellis (1923), 193 Ind. 619, 141 N.E. 337. We, therefore, hold that the appellant's contention that there is insufficient evidence to sustain the decision of the trial court is without merit. The evidence in this record is sufficient to sustain the finding of the trial court that appellant was guilty as charged.
Appellant next contends that the judgment is contrary to law in that two of the prosecuting witnesses were allowed to read from the records of the grand jury. Appellant contends that the proper way to present the testimony before the grand jury is to have he stenographer who recorded the testimony read her notes to the trial court, citing Higgins v. State (1901), 157 Ind. 57, 60 N.E. 685. It is true under the Higgins case that it would be proper under certain circumstances for a reporter to read from her notes. The care does not limit the introduction of such evidence exclusively to this method. Burns' Ind.Stat., 1956 Repl., § 9--817 provides as follows:
In Davidson v. State (1933), 205 Ind. 564, 187 N.E. 376, the Court was faced with a similar situation. A sheriff who had been present at a previous habeas corpus proceeding was permitted to testify concerning statements made by the defendant at the hearing. In that case the defendant objected on the ground that the transcript would be the best evidence. At page 570 of the opinion, at page 379 of 187 N.E., this Court stated:
It was, therefore, proper for the foreman of the Marion County Grand Jury to testify concerning the testimony of the appellant before the grand jury.
When Mr. Anderson was questioned concerning his recollection of the testimony of the appellant before the grand jury he stated that he did remember the substance of her testimony, but that he could not repeat it verbatim without referring to the transcript of the testimony taken at that time. Whereupon, the Court over the objection of appellant permitted the witness to use the transcript of the testimony to refresh his recollection as to the verbatim questions asked and answers given by the appellant. The trial court specifically and correctly stated that he was permitting the use of the transcript for the sole purpose of refreshing the recollection of the witness.
It was not only proper for the trial court to permit the foreman of the grand jury to testify concerning the testimony of the appellant, it was also proper to permit him to refresh his recollection by the use of the transcript made of the grand jury proceedings. The law in Indiana which permits the use of written memoranda to refresh the recollection of a witness was established very early in this state. This Court stated in the case of Clark v. State (1853), 4 Ind. 156, 157:
'A witness may be permitted to refresh his memory of facts, by referring to a written memorandum, written either by himself or by another, at or near the time of the occurrences; but the memorandum cannot be substituted in the stead of the recollection of the witness.
'If an inspection of the writing recalls to the mind of the witness facts which he had previously known, but which had, at the moment, escaped his recollection, he can then testify to such facts as being within his own personal knowledge.'
We find no reversible error in this case. The trial court is, therefore, a affirmed.
I concur with the majority in this case. In so doing I would make the following observations. The dissent in this case correctly states the law concerning the use of written memoranda to refresh the recollection of a witness.
However in the case at bar the following is found in the record:
'
At that point the prosecutor started to read from the grand jury transcript and the following objection and ruling appears:
Mr. Ward then objected to the witness reading the transcript. The court ruled:
The record then contains a series of questions and answers set out in quotation marks following which the following objection and ruling appear:
There is no mention in the record that the transcript was read in evidence. When that was attempted the objection was sustained. The trial judge did correctly permit the witness to examine the transcript. The record is silent as to where the transcript was during the actual testimony of the witness. In the absence of an affirmative showing to the contrary we must presume the trial court restricted the use of the transcript to the refreshing of the witness's memory. 3 Wiltrout, Ind. Practice § 2790(1).
Appellant was charged with giving false sworn testimony to the Marion County Grand Jury on August 24, 1966. The sole evidence in the record on appeal of the...
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Turner v. State
...refresh his memory from the transcript of proceedings before the grand jury, then permitted him to testify. In Richardson v. State (1971), Ind., 266 N.E.2d 51, 24 Ind.Dec. 474, this Court held that it was proper to permit a member of the grand jury to testify concerning the proceedings befo......
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Carter v. State
...55, 324 N.E.2d 482 by the majority opinion. 1 IC 1976, 35-42-5-1 (Burns Code Ed., Repl. 1979).2 Justice DeBruler's dissenting opinion in Richardson should be examined. Two other justices recognized it as an accurate statement of Indiana law on present recollection refreshed. The majority op......
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Wininger v. State, 87A01-8804-CR-140
...has no present recollection of the events to be proven in order for the writing to be admitted. Blinn, supra; Richardson v. State (1971), 255 Ind. 655, 266 N.E.2d 51. Finally, the former testimony exception to the hearsay rule permits the use of testimony from a prior judicial proceeding in......
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