Rohlfing v. State, 28806

• Decision Date: 05 December 1951
• Docket Number: No. 28806,28806
• Citation: 102 N.E.2d 199,230 Ind. 236
• Parties: ROHLFING v. STATE.
• Court: Indiana Supreme Court

Page 199

102 N.E.2d 199

230 Ind. 236

ROHLFING v. STATE.

No. 28806.

Supreme Court of Indiana.

Dec. 5, 1951.

Rehearing Denied Jan. 15, 1952.

John R. Frazier, Rushville, Hugh D. Wickens, Hubert E. Wickens, Greensburg, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain, Deputy Attys. Gen., Ronald Beard, Pros. Atty., 69th Circuit, Greensburg, for appellee.

DRAPER, Judge.

The appellant was charged with receiving stolen goods, consisting of two radios, several shotguns, one rifle, one pistol and several fishing rods and reels. See Burns' 1942 Repl., § 10-3017. He was tried by jury, found guilty, and sentenced to the state prison. His motion for new trial was overruled, hence this appeal.

He was tried and found guilty of the same charge once before. That judgment was reversed by this court in 227 Ind. 619, 88 N.E.2d 148, this court there holding that appellant's motion to quash the search warrant and suppress the evidence illegally obtained thereby was erroneously overruled prior to the first trial. On remand that motion was, pursuant to the mandate of this court, sustained by the trial court before this trial was begun.

In this state the trial court is required to instruct the jury, immediately it has been sworn to try the case, as to the issues for trial, the burden of proof, the credibility of witnesses and the manner of weighing the testimony to be received. Rule 1-7a. While the court was reading those instructions to the jury the prosecuting attorneys brought into the courtroom, before the jury, several rifles and shotguns, a pistol, two radios and some fishing tackle. With the exception of one gun, these were the articles which were recovered by virtue of the invalid search warrant. The appellant objected and moved for a mistrial. The court, by gesture, ordered the articles removed from the courtroom, and then admonished the jury not to consider what had occurred in reaching their verdict, and overruled. appellant's objection and motion.

At the conclusion of the opening statement the prosecuting attorneys again brought the articles into court and laid them on the table before the jury. Appellant made the same objection and motion which the court sustained; the attorneys were directed to withdraw the articles from the courtroom, and the jury was admonished to disregard them in making up their verdict.

Later, while a witness was being examined by counsel for the state, they again exhibited before the court and jury a 16 gauge automatic shotgun, which was one of the guns obtained by the execution of said search warrant. The jury was again told not to take into consideration the prosecuting attorneys' conduct in bringing this exhibit before the jury, and not to take it into consideration in making up its verdict.

The owner of the stolen goods was permitted to answer, in close sequence, that he had seen the stolen property after it was stolen from his store; he saw it at the police station; at that time the sheriff, the police captain, the patrolmen and the defendant were there, and the appellant then and there said he had bought the guns from Roy Merrit.

The search was made by virtue of an improper warrant. Any evidence obtained thereby, whether it be the articles involved in the commission of the crime or oral evidence of what was found or seen while such unlawful search was being conducted, is incompetent against the accused. Flum v. State, 1923, 193 Ind. 585, 141 N.E. 353; Callender v. State, 1923, 193 Ind. 91, 138 N.E. 817; Dearing v. State of Indiana, 1948, 226 Ind. 273, 79 N.E.2d 535.

The articles were not offered in evidence. The state did not offer to exhibit them to the jury. It offered no direct evidence that the articles were ever in the possession of the defendant or that they were ever seen on or recovered from his premises. But the mere fact that they were displayed before the jury, particularly when considered in connection with the nature and sequence of the testimony elicited from the witness Doerflinger, was obviously calculated to persuade the jury that such was the fact. The determined efforts of the attorneys for the state to keep these articles under the eye and in the mind of the jury, with consequent efforts on the part of the appellant to have them removed, would of itself tend to impress the jury that here was evidence damaging to the appellant. The prejudicial effect of displaying and referring to articles which are not and could not be introduced in evidence was noticed by this court in Derry v. State, 1932, 204 Ind. 21, 182 N.E. 701, 703. In that case the defendant was charged with driving a motor vehicle while under the influence of intoxicating liquor. During the trial certain containers of whiskey, a bottle of coloring fluid, a funnel, can, flashlight and a revolver and cartridges were exhibited to the jury and referred to by the witnesses. In the course of our opinion in that case we said: 'The purpose of their exhibition before the jury is evident. No one, not even the state, will doubt their prejudicial influence on the jury, although they were not actually introduced in evidence. It is hardly reasonable to assume that the jurors would be able to dismiss from their minds the impressions formed from the day and a half observation of them. We know from common knowledge that such a display would tend to prejudice the jury, not only against the defendant himself but against any defense he might have to offer.'

The articles in question were the very things the appellant was charged with having feloniously received, as the jury could see and certainly knew. The state's persistent effort to keep them on display; the appellant's no less determined effort to get them out of sight; together with the implication of Doerflinger's testimony that the first time he saw the articles after they were stolen was when he saw them with the appellant at the police station, were clearly calculated to convince the jury that the appellant was 'caught with the goods.' We think the jury got the idea.

We do not suggest that such is the case, but if counsel for the state, knowing that these articles should not be displayed to the jury, made repeated efforts to lay them before the jury for the purpose of compelling the appellant to make repeated objections, that in itself would be prejudicial error. Lynn v. State, 1929, 113 Tex.Cr.R. 637, 21 S.W.2d 1042.

It seems to us that the attorneys for the state must have misconceived the effect of the order quashing the search warrant and suppressing the evidence illegally obtained thereby. Such an order does not serve merely to throw up obstacles which make proof more difficult. It strikes at the right to prove. It concerns itself not with methods, but with rights. It absolutely prohibits the state and its officers from putting evidence illegally obtained before the jury by methods either direct or devious.

It is true the court did on several occasions admonish the jury to disregard the display of these articles in making up its verdict. Such action on the part of the court was necessary and quite proper. But the frequent repetition of such an admonition, made necessary by improper conduct on the part of the prosecuting attorney, may of itself operate to emphasize rather than minimize the damage, for it may actually tend to attach to such evidence a wholly unwarranted and undeserved...