Rowe v. State, 867S64

• Docket Nº: No. 867S64
• Citation: 237 N.E.2d 576, 250 Ind. 547
• Case Date: June 19, 1968
• Court: Supreme Court of Indiana

Page 576

237 N.E.2d 576 250 Ind. 547 Edward Wade ROWE, Appellant,
v.
STATE of Indiana, Appellee. No. 867S64. Supreme Court of Indiana. June 19, 1968.

[250 Ind. 548] Ralph O. Lafuze, Hagerstown, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Rex P. Killian, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

The appellant herein is appealing from a conviction in the Superior Court of Wayne County of murder in the second degree.

Prosecution was commenced on the basis of an indictment charging appellant with the above stated crime; appellant entered a plea of not guilty and thereafter trial was had by jury. The trial resulted in the jury returning a verdict of guilty as

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charged, and upon this verdict the court rendered judgment accordingly and sentenced appellant to be imprisoned in the state prison for life.

The error assigned and relied upon by the appellant is the overuling of his motion for new trial. Appellant argues two specifications of error which are set forth in his motion for new trial as follows:

[250 Ind. 549] I. Irregularity in the proceedings of the Court, orders of Court, and abuse of discretion, by which the Defendant was prevented from having a fair trial, in this, to wit:

1. Misconduct of counsel for State of Indiana and action of the Court in regard thereto: The Court erred in overruling the objection of the Defendant to the following remark of Harry Holtsclaw, Deputy Prosecuting Attorney of Wayne County, in his argument to the jury: and the Court erred in overruling Defendant's motion for a mistrial on account of said remark; the remark of Mr. Holtsclaw, the objection, the ruling of the Court, the motion for a mistrial, and the ruling of the Court on said motion being fully set out in the affidavit of Ralph O. Lafuze, Exhibit 1, which is attached hereto, filed herewith and made a part hereof.

II. Error of law occurring at the trial, in this:

2. The Court erred in overruling the objections of the defendant to certain questions asked of State's witness Sharon Day on direct examination, and the Court erred in admitting the answers thereto into evidence, which questions, objections, answers and the rulings of the Court thereon are in the following words:

Q. Do you and John Day have any children?

Mr. Lafuze: Objection, immaterial.

The Court: Objection overruled.

A. We have two children, a boy and a girl--twins.

Q. What are their ages?

Mr. Lafuze: Objection, immaterial.

The Court: Objection overruled.

A. Three years old.

Appellee, State of Indiana, urges that the above stated objections, following questions propounded by the prosecuting attorney to the deceased's widow, present no question for review since they were general and indefinite. Although there is ample authority for this position, see e.g. Brown v. State (1939), 216 Ind. 107, 23 N.E.2d 267; Williams v. State (1907), [250 Ind. 550] 168 Ind. 87, 79 N.E. 1079, we fail to see how the objection could have been made more specific when on its face the question had nothing to do with the issues in this case.

The State does not contend that the admission of testimony as to surviving family in this homicide case was material in that the fact it tended to prove or to disprove related to an issue in the case. The State argues that the admission of such testimony resulted in harmless error.

The only Indiana cases cited by either appellant or appellee which involved this issue is Walker v. State (1885), 102 Ind. 502, 1 N.E. 846. In Walker this Court affirmed a conviction of voluntary manslaughter reasoning that, since all the evidence was not in the record before the court, the court would indulge in a presumption in favor of the materiality of evidence that the deceased had a wife and two children.

The admission of evidence that the deceased left a spouse and a family is generally not a proper part of the State's case and is condemned by many courts. E.g. Walker v. State (1965), 239 Ark. 172, 388 S.W.2d 13; People v. Tajra (1965), 58 Ill.App.2d 479, 208 N.E.2d 9; People v. Miller (1959), 6 N.Y.2d 152, 188 N.Y.S.2d 534, 160 N.E.2d 74. Such evidence has no relation to the guilt or innocence of the accused or to the punishment to be administered to him, and is ordinarily calculated

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only to prejudice the defendant with the jury. However, evidence as to the family of the victim of a homicide may well be material when used to describe the res gestae, Johnson v. State (1910), 169 Ala. 10, 53 So. 769; to show that the deceased would not have been likely to attempt illicit relations with the accused's wife, State v. Sauls (1923), 93 W.Va. 276, 116 S.E. 391; and when a general attack on the deceased's character has been made by the defendant.

The admission of such testimony over objection is generally presumed to be prejudicial to the defendant, for to hold [250 Ind. 551] otherwise would be 'to disregard realities of trial atmosphere and the emotional frailties of human nature.' Knight v. State (1962), 273 Ala. 480, 142 So.2d 899. Illinois has held out that where the testimony is not elicited incidentally, but is presented in such a manner as to cause the jury to understand that it is a matter material and proper to be proved, its admission is prejudicial error. People v. Dukes (1957), 12 Ill.2d 334, 146 N.E.2d 14, 67 A.L.R.2d 724. But such evidence was not prejudicial when the issues of fact were not presented to a jury but rather to a three-judge court. State v. White (1967), 9 Ohio App.2d 271, 224 N.E.2d 377. We...