Sherwood v. State

• Decision Date: 05 December 1960
• Docket Number: No. 29736,29736
• Citation: 241 Ind. 215,170 N.E.2d 656
• Parties: Elmer W. SHERWOOD, William E. Sayer, Appellants, v. STATE of Indiana, Arthur J. Mogilner, Appellees.
• Court: Indiana Supreme Court

Page 656

170 N.E.2d 656

241 Ind. 215

Elmer W. SHERWOOD, William E. Sayer, Appellants, v. STATE of Indiana, Arthur J. Mogilner, Appellees.

No. 29736.

Supreme Court of Indiana.

Dec. 5, 1960.

Rehearing Denied Jan. 17, 1961.

James E. Rocap, Jr., Keith C. Reese, Indianapolis, Carl M. Gray, Petersburg, for appellants. James E. Rocap, Sr., Indianapolis, of counsel.

Edwin K. Steers, Atty. Gen., for appellees. Carl M. Franceschini, LaPorte, of counsel.

ARTERBURN, Judge.

The appellants and Arthur J. Mogilner were charged by affidavit in two counts with the crime of conspiracy to bribe Virgil W. Smith, a commissioner of the State Highway Department of the State of Indiana, and with bribery of such official. The defendant Mogilner changed his plea from not guilty to guilty at the time the trial began and became a witness for the prosecution. The appellants were tried by a jury in Marion County and were found guilty and were each sentenced for a term of two to twenty-one years in the Indiana State Prison and fined $15,000 on both counts of the affidavit. Appellants' sole assigned error is the overruling of appellants' motion for a new trial.

The first alleged error of which complaint is made is that the court erred in refusing to give appellant Sherwood's tendered Instruction No. 17 and appellant Sayer's tendered Instruction No. 20, which are the same, and read as follows:

'I instruct you that if you find from the evidence in this case that the Prosecuting Attorney has agreed to recommend leniency for Arthur J. Mogilner, you may consider this evidence, together with all other evidence, in determining the credibility of the said Arthur J. Mogilner and the weight to be given his testimony as a witness herein.'

It is appellants' contention that there was evidence showing that Mogilner had said in substance that the prosecuting attorney had promised him to recommend a suspended sentence if he would give evidence helpful in the conviction of the two appellants, and further stated that the prosecutor suggested that he testify falsely, if necessary, for such conviction. The appellants contend that Mogilner was the State's 'star witness'; that he stated that he had arranged with Smith, the chairman of the State Highway Commission, for the payment of the alleged bribes in the purchase and use of highway equipment and supplies and that he was the go-between in all particulars, including the funneling of the funds back to the two appellants. The only corroborating evidence were exhibits (cancelled checks) showing payments to appellants and to Virgil Smith (under the name V. Wilson).

It is urged that the question as to the credibility of this witness is the essence of the appellants' defense.

As a general principle an agreement to recommend leniency towards a co-conspirator or one charged with a crime in consideration of favorable testimony, is a matter which affects such witness's credibility. However, we point out, a mere promise alone to recommend leniency, if such a witness pleads guilty, does not necessarily affect such witness's credibility, particularly where the witness is sentenced prior to the trial and prior to the time when the testimony is given. To make the point clearer, the tendered instruction was so broad it could have been applicable to a situation in which a witness is sentenced immediately after pleading guilty and prior to the trial, with no threat of a sentence hanging over him at the time of testifying. The language of the tendered instruction in question does not connect any promise of leniency with an understanding or agreement to testify or with a factual situation in which the sentence is pending or delayed until after the testimony is given. Such factors are those which would tend to influence testimony. The tendered instruction in this case does not include within its language such element and is therefore defective. Instructions should be confined to the evidence and should not be so broad as to cover factual situations not presented for consideration of a jury. 8 I.L.E. Criminal Law § 451, p. 514; 23 C.J.S. Criminal Law § 1312, p. 906.

An examination of the case of Mattingly v. State, 1957, 236 Ind. 632, 142 N.E.2d 607 reveals that no question as to the wording of an instruction was involved in that case and no consideration was given as to the framing of an instruction on the point involved to conform to the evidentiary background.

Diblee v. State, 1931, 202 Ind. 571, 177 N.E. 261 cited by appellants, for the reasons above stated, is not applicable here.

We point out further that the court in the case before us gave general instructions which applied equally to the credibility of all witnesses and the weight to be given their testimony. It also gave an instruction upon the question of the credibility of an accomplice, which read as follows:

'Instruction No. 40.

'An accomplice is one who, with criminal intent, acts with others and participates in the commission of a crime. Under the laws of the State of Indiana, an accomplice is competent as a witness for the State in the trial of a criminal case. The evidence of an accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other witness. It is the duty of the court and jury to carefully scrutinize the testimony of an accomplice, and, if his testimony shall be found to establish the guilt of the defendants beyond a reasonable doubt, the jury may return a verdict of guilty on his testimony alone.'

We find no error in refusing to give the tendered instruction as worded.

The appellant Sherwood next complains of error because the trial court permitted the State on cross-examination to inquire into his net worth, which he stated to be approximately $300,000. The contention is made that this was not material or relevant to the issues involved. The State, on the other hand, points out that on direct examination the defendant Sherwood went into certain banking and other financial transactions in an effort to show that he had not withdrawn or paid $2,500 to Mogilner. The State had a right to bring out on cross-examination that he had ample assets in various forms which would make it easy to obtain the $2,500 from sources other than bank accounts and those specifically referred to in the evidence by the defendant. Where one opens up such a subject matter on direct examination the door is likewise open for cross-examination. There is no showing the court abused its discretion in permitting such cross-examination limited to the extent shown. Brower v. State, 1956, 236 Ind. 35, 138 N.E.2d 237; Kaminski v. Meadows, 7 Cir., 1959, 264 F.2d 53; Hicks v. State, 1937, 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501; certiorari denied 304 U.S. 564, 58 S.Ct. 951, 82 L.Ed. 1531; Denny v. State, 1921, 190 Ind, 76, 129 N.E. 308; Kahlenbeck v. State, 1889, 119 Ind. 118, 21 N.E. 460; Stillson v. State, 1933, 204 Ind. 379, 184 N.E. 260.

The appellants complain that upon their request they should have been granted separate trials. Their complaint of injury and prejudice is based primarily upon being forced into a trial with Mogilner who, after the jury was impaneled but before the taking of evidence, pleaded guilty. The granting of separate trials is discretionary with the court under the statute. Burns' § 9-1804, 1956 Repl.

Appellants fail to point out any evidence which was introduced that was prejudicial which would have been excluded, had there been separate trials. The denial of a separate trial because a co-defendant may turn state's evidence and enter a plea of guilty, is not an abuse of discretion. Such facts, in event Mogilner took the stand even in a separate trial, would have been revealed to the jury. The same answer may be made to the argument that the appellants were prejudiced by (Brown v. State), 1948, 226 Ind. 665, 82 he had other indictments pending against him. The fact that a co-defendant has a criminal record is not a mandatory ground for a separate trial. Badgley v. State (Brown v. State), 19488 226 Ind. 665, 80 N.E.2d 841.

The appellants have failed to cite any cases in support of their argument which have held that there has been an abuse of discretion in denying separate trials in similar instances. The court instructed the jury that Mogilner's plea of guilty was not to be considered in any way as evidence of guilt of the appellants.

The appellants each made a verified request for a change of venue from the county because of prejudice and odium existing among the citizens of the county. Appellant Sherwood's affidavit contained allegations with reference to...