Rusher v. State, 470S92

Decision Date16 June 1971
Docket NumberNo. 470S92,470S92
Citation270 N.E.2d 748,256 Ind. 520
PartiesJohn RUSHER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.


Defendant (Appellant) was convicted of theft from a coin operated machine. His defense was one of entrapment. The State's witness, the arresting police officer, testified that he saw the defendant take the money in question and that the defendant's clothing and the money taken from him after the arrest revealed traces of ultraviolet powder with which the coins and coin box had been dusted in preparation for the 'stake-out' which he, the officer, had helped to plan and wherein the defendant had been caught. The police officer, on cross-examination, testified that he was acquainted with one Gary Stevens, having met him on one occasion at the police headquarters, approximately six weeks prior to the theft, in the company of representatives of Auto-teria, the victimized company. Another State's witness, a Mr. Amy, who was an associate of Auto-teria, testified on direct examination that the money belonged to his company and that he had not given the defendant or his co-defendant permission to take it. On cross-examination he testified that immediately after the arrest of the defendants, he accompanied them and the arresting officer to police headquarters, that his father, brother, several police officers, and the aforenamed Gary Stevens were also there. He also acknowledged that he had had a prior acquaintance with Stevens, and at this point the following question was asked of him: 'And, is it not a fact, Mr. Amy, that on or about the 1st of November, 1967, at an Auto-teria Car Wash, in the fifty-three hundred block of Winthrop Avenue, in Indianapolis, Indiana you apprehended this same Gary Stevens?' The court sustained the prosecuting attorney's objection to this question upon the grounds that it was outside the scope of the direct examination. Defense Counsel contended that the circumstances hereinbefore related disclosed an involvement of Stevens and the circumstances surrounding the crime.

Defendant by his brief, argues that the trial court unduly restricted his cross-examination of the witness, Amy, and that, had he been permitted to answer the question, his answer would have revealed a scheme of entrapment. He cannot prevail on this point. The question was clearly outside the scope of Amy's testimony on direct examination. In general the cross-examination of a witness should be limited to the subject matter of his examination in chief. Hicks v. State (1937), 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501.

A party may not make out his defense or rebuttal by cross-examining witnesses as to matters not within the scope of their direct examination. Britton v. State ex rel. Rowe (1888), 115 Ind. 55, 17 N.E. 254.

The defendant's evidence was limited to the testimony of one Gary Stevens, who testified that he had been in the employ, at various times, of both the defendant and the victimized company, Auto-teria, and that upon an occasion approximately six weeks prior to the theft by the defendant he had himself been caught by Amy in the act of stealing coins from the Auto-teria Company. Upon this occasion, so testified Stevens, Amy suggested to him that he participate with him in a plan to induce the defendant to steal from Auto-teria, in order that he could be apprehended. Stevens related an elaborate scheme, originated by Amy, by which they would get proper keys into the defendant's possession and encourage him to commit the theft. He further testified that he agreed to go along with the plan upon Mr. Amy's...

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16 cases
  • Lewis v. State
    • United States
    • Indiana Supreme Court
    • March 10, 1976
    ...witnesses. Coleman v. State, supra; Fuller v. State, supra; Sanchez v. State, (1971), 256 Ind. 140, 267 N.E.2d 374; Rusher v. State, (1971), 256 Ind. 520, 270 N.E.2d 748. The substantive evidence against the defendant came from two witnesses, one his eight year old son, previously mentioned......
  • Hash v. State
    • United States
    • Indiana Supreme Court
    • July 6, 1972
    ...that may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind.,271 N.E.2d 706; Rusher v. State (1971), Ind., 270 N.E.2d 748. Conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of......
  • Easton v. State
    • United States
    • Indiana Supreme Court
    • March 23, 1972
    ...383. This Court, on appeal, will not weigh the evidence or determine the credibility of witnesses. Fuller v. State, supra; Rusher v. State (1971), Ind., 270 N.E.2d 748; Sanchez v. State (1971), Ind., 267 N.E.2d Reviewing the evidence most favorable to the State, together with all logical an......
  • Cravens v. State
    • United States
    • Indiana Supreme Court
    • November 18, 1971
    ...nor determine the credibility of witnesses: Fuller v. State, supra; Sanchez v. State (1971), Ind., 267 N.E.2d 374; Rusher v. State (1971), Ind., 270 N.E.2d 748; Powell v. State (1970), Ind., 258 N.E.2d 633; and that a conviction will be affirmed, if there is any evidence of probative value ......
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