Richardson v. State, 168S13

Docket NºNo. 168S13
Citation24 Ind.Dec. 474, 255 Ind. 655, 266 N.E.2d 51
Case DateFebruary 04, 1971
CourtSupreme Court of Indiana

Page 51

266 N.E.2d 51
255 Ind. 655
Mary RICHARDSON, Appellant,
STATE of Indiana, Appellee.
No. 168S13.
Supreme Court of Indiana.
Feb. 4, 1971.
Rehearing Denied March 15, 1971.

Page 52

Palmer K. Ward, Indianapolis, for appellant.

[255 Ind. 656] John J. Dillon, Former Atty. Gen., Duejean C. Garrett, Former Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

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 [255 Ind. 657] 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

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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:

[255 Ind. 658] 'A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury, in giving his testimony or upon his trial therefor. (Acts 1905, ch. 169, § 103, p. 584.)'

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:

'The fact, if it be fact, that the evidence of the appellant given in Oklahoma City was taken down by a court reporter and transcribed in long hand would not exclude the oral evidence given by Mr. Rouse. The reporter's notes would be but the written memorandum of a person, taken at the time, under official sanction. It might be more reliable and satisfactory evidence than any testimony from memory, but the latter is not rendered incompetent by the fact of the existence of an official report.'

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 [255 Ind. 659] 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.'

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We find no reversible error in this case. The trial court is, therefore, a affirmed.

ARTERBURN, C.J., concurs with separate opinion;

HUNTER, J., concurs.

DeBRULER and PRENTICE, JJ., dissent with separate opinions.

ARTERBURN, Chief Justice (concurring).

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...

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12 cases
  • Turner v. State, 470S93
    • United States
    • Indiana Supreme Court of Indiana
    • April 4, 1972
    ...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 before the g......
  • Carter v. State, 3-380A79
    • United States
    • Indiana Court of Appeals of Indiana
    • November 25, 1980
    ...has long permitted the use of written memoranda to refresh the recollection of a forgetful witness. Richardson Page 828 v. State (1971), 255 Ind. 655, 266 N.E.2d 51; 2 Southern R. Co. v. State (1905), 165 Ind. 613, 75 N.E. 272; Clark v. State (1853), 4 Ind. 156. The foundational requirement......
  • Wininger v. State, 87A01-8804-CR-140
    • United States
    • Indiana Court of Appeals of Indiana
    • August 18, 1988
    ...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 Finally, the former testimony exception to the hearsay rule permits the use of testimony from a prior judicial proceeding in a l......
  • Napier v. State, 269S34
    • United States
    • Indiana Supreme Court of Indiana
    • February 4, 1971
    ...incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge[255 Ind. 655] for cause without regard to his testimony as to his state of Under this standard the trial court would have had to excuse the jurors who h......
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