Ross v. State

• Decision Date: 26 October 1932
• Docket Number: 25,880
• Parties: Ross v. State of Indiana
• Court: Indiana Supreme Court

182 N.E. 865

204 Ind. 281

Ross v. State of Indiana

No. 25,880

Supreme Court of Indiana

October 26, 1932

Rehearing Denied January 2, 1933.

[Rehearing denied January 2, 1933.]

1. ROBBERY---Indictment---Description of Property.---Chapter 158, Acts 1927, p. 470 (2425.1 Burns Supp. 1929), defining the crime of bank robbery, does not define, as an element of the offense, the nature, kind, value or ownership of the objects of the defendant's purpose to steal, and therefore, an affidavit charging a purpose to steal "money" was held sufficient, p. 285.

2. ROBBERY---"Bank Robbery"---Statute Not Repealed by Subsequent Statutes on Subject.---The statute defining the crime of "bank robbery" (Acts 1927, ch. 158, 2425.1 Burns Supp. 1929) was held unrepealed by subsequent statutes on the subject of robbery. (Acts 1927, p. 576; Acts 1929, pp 139, 136 and 137), the latter statutes containing nothing in conflict with the former, p. 285.

3. CRIMINAL LAW---Evidence---Identity of Defendant---Effect of Witness' Former Identification of Another.---Where the identity of defendant depended upon one witness, the fact that such witness had, before the trial, identified another did not destroy the testimony identifying defendant, but such evidence should be considered by the jury in testing the credibility of the witness and in determining what weight, if any, should be given her testimony. (Bessette v. State, 101 Ind. 85, distinguished.) p. 286.

4. CRIMINAL LAW---Review of Evidence---Weight and Credibility---For Trial Court and Jury.---The questions of credibility of a witness and weight to be given testimony are exclusively for the trial court and jury and are not subject to review by an appellate court if it can be said there was any evidence which, if believed, would support the verdict p. 286.

5. CRIMINAL LAW---Evidence---Identity of Defendant---Opinion.---A witness may testify as to his opinion of the identity of defendant with the guilty party, but he may be cross-examined as to his means of knowledge, and the weight to be given such testimony is for the trial court and jury. p. 286.

6. CRIMINAL, LAW---Compulsory Self-Incrimination---Pre-trial Efforts to Identify Accused---By Physical Examination.---The rule against compulsory self-incrimination does not properly apply to pre-trial efforts to identify a suspect as the probable perpetrator of a crime, even though such efforts involve physical examination or observation of the suspect against his will, p. 291.

7. CRIMINAL LAW---Compulsory Self-Incrimination---Rule State.---The rule against compulsory self-incrimination is limited to testimonial compulsion, i. e., a defendant cannot be required to be a witness in his own trial, nor can another person testify under such circumstances that he is a mere mouthpiece of the defendant, the defendant being the real witness, but the privilege does not embrace testimony of a witness other than the defendant unless such testimony results in getting before the jury evidence which rests upon the testimonial responsibility of the defendant. p. 294.

8. CRIMINAL LAW---Evidence---Compulsory Self-Incrimination---Exposing Person of Accused to View of Witness.---A defendant's constitutional privilege against self-incrimination was held not violated by requiring him, before the trial, to place a handkerchief over his face and grow a beard for purposes of identification, and permitting the witness to testify at the trial as to the result of her observation of defendant, p. 294.

9. CRIMINAL LAW---Appeal---Evidence---Reservation of Grounds in Lower Court.---An Appellate Court cannot consider on appeal any objection to evidence which was not made and overruled in the lower court, p. 295.

10. CRIMINAL LAW---Trial---Improper Evidence---Withdrawal Thereof---Presumption.---Where improper evidence is admitted and later withdrawn from the consideration of the jury, the error is presumed to have been harmless, unless the contrary is affirmatively shown, p. 295.

11. CRIMINAL LAW---Trial---Improper Evidence---Withdrawal Thereof---Waiver of Error.---Where a trial judge withdraws improper evidence from the consideration of the jury, the error is waived unless the appellant moves to discharge the jury, p. 295.

12. CRIMINAL LAW---Character Evidence---Instruction---Confining Effect to Doubtful Cases.---An instruction that character evidence was not admitted to furnish an excuse or defense for the crime charged if the jury was satisfied beyond a reasonable doubt that he did commit the crime, but should be considered with all other evidence upon the question of his guilt or innocence, was held proper, p. 296.

13. CRIMINAL LAW---Trial Conflicting Evidence---Instruction---As to Jury's Duty.---Where there is conflicting testimony, a defendant in a criminal trial is entitled to an instruction which, in substance, will inform the jurors of their duty to reconcile the evidence upon the theory of the defendant's innocence, if this reasonably can be done. p. 298.

14. CRIMINAL LAW---Instructions---Improper Instruction---Cured by Other Instructions.---An instruction with reference to conflicting evidence, that failed to charge the jury to reconcile the evidence with the theory of defendant's innocence, if that could reasonably be done, was held cured by another instruction which fully and properly covered that subject, p. 298.

15. CRIMINAL LAW---Instructions---As to Comments of Court and Counsel Respecting Evidence.---An instruction in a criminal case, which told the jury that statements by the court and by counsel "concerning what any witness had testified to" were not to be considered "as evidence in the cause," was held proper. (Instruction in State v. Gutterman, 20 N. Dak. 432, which told jury to pay no attention to remarks of counsel, distinguished.) p. 300.

16. SEARCHES AND SEIZURES---Illegal Search---Motion to Suppress Evidence Obtained---Review on Appeal.---The overruling of a motion to suppress evidence obtained under an illegal search will not constitute reversible error unless it is shown that such evidence was prejudicial to appellant, p. 300.

17. CRIMINAL LAW---Evidence---Statements of Defendant---Admissibility.---To form a basis for the contention that statements and admissions by a defendant in a criminal case were illegally obtained, it must be shown either that the defendant was, at the time, being held without probable cause or that he was coerced into making the statements attributed to him. p. 300.

18. NEW TRIAL---Newly Discovered Evidence---As Grounds For New Trial---Character of New Evidence.---Newly discovered evidence, inconclusive and cumulative in character, which at best, only tends, by inference, to contradict the testimony of other witnesses, is not sufficient grounds for new trial under the specification of newly discovered evidence, p. 300.

Charles O. Ross was convicted of bank robbery, and he appealed. Affirmed.

Rehearing Denied January 2, 1933.

From Jay Circuit Court; Frank Gillespie, Judge.

Charles O. Ross was convicted of bank robbery, and he appealed.

Affirmed.

James J. Moran, Smith & Smith and Whitaker & Mills, for appellant.

James M. Ogden, Attorney-General, and V. Ed Funk, Deputy Attorney-General, for the State.

OPINION

Treanor, J.

Appellant was charged by affidavit ^[1] with the crime of bank robbery under § 2425.1 Burns Ann. Ind. St., Supp. 1929 (Acts 1927, ch. 158, p. 470), ^[2] and upon trial was found guilty. He assigns as error the following:

1. The court erred in overruling appellant's motion to quash the affidavit herein.

2. The court erred in overruling appellant's motion for a new trial.

3. The court erred in overruling appellant's written motion to suppress evidence.

4. The court erred in overruling appellant's motion in arrest of judgment.

Appellant's motion to quash was based upon the following reasons:

First: That the facts stated in the affidavit do not constitute a public offense.

Second: That the affidavit does not state the offense with sufficient certainty.

It will be noted that the affidavit here follows the language of the statute and in addition alleges that, that which appellant purposed to steal was "money." Appellant contends that "the affidavit does not charge the appellant with stealing or attempting to steal from any building, bank, safe or other depository, any bonds or other valuables" and insists that "money is not mentioned in the statute under which appellant was prosecuted." But the statute provides that the doing or attempting to do certain acts "for the purpose of stealing from any building, bank, safe or other depository of money, bonds or other valuables" shall constitute the offense of bank robbery, and does not prescribe or define, as an element of the offense, the nature, kind, value or ownership of the objects of the defendant's purpose to steal. The elements of the offense alleged in this affidavit are: (a) an intent to commit larceny, (b) confining and attempting and threatening to confine, maim, injure and wound and putting in fear Blanche Morrical (c) for the purpose of stealing (d) from the Pennville State Bank. The statute does not require any other or additional element to complete the offense of bank robbery although the statute specifies certain other acts which shall also constitute bank robbery.

Appellant contends, in support of his motion to quash, that the statute under which this prosecution was brought, § 2425.1 supra, was "repealed prior to the commission of the alleged offense charged in the affidavit," citing Acts 1927, p. 576; Acts 1929, [204 Ind. 286] pp. 139, 136 and 137, which deal with robbery, the commission of certain offenses while armed with a deadly weapon, robbery and the infliction of a wound in the commission of robbery, burglary and...