Shuemak v. State

Decision Date13 May 1970
Docket NumberNo. 969S201,969S201
Citation254 Ind. 117,21 Ind.Dec. 296,258 N.E.2d 158
PartiesDavid Albert SHUEMAK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Donald D. Bussell, Dennis, Dennis, Reinke & Vertesch, Richmond, for appellant.

Theodore L. Sendak, Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a conviction of second degree burglary. Appellant presents four issues for our consideration.

It is first argued that the conviction is not supported by sufficient evidence. The record shows that on November 28, 1968 a window of Bowen's Oldsmobile, Inc., located in Richmond, Indiana, was discovered broken. Two window panes had been broken, one by each of the two latches which secured the window. Inside the building a vending machine was found forced open. The money had been removed from the coin box. Upon investigation a fingerprint was discovered on the coin box. It was later identified as being the left thumb print of the appellant. Appellant lived next door to Bowen's and was a former employee. However, during the course of his employment he did not have occasion to enter the vending machine.

The appellant's argument is directed to the evidence as it relates to the identity of appellant as the person who broke the window and entered the structure with intent to commit a felony. Appellant's explanation of how his fingerprint came to be on the coin box was that he found the coin box in his back yard and, knowing it was from Bowen's, entered the building through an open door and replaced the coin box inside the vending machine. Appellant does not dispute that the fingerprint was properly identified as belonging to him. He argues that his explanation as to how his fingerprint came to the on the coin box was completely plausible and should have been believed. Appellant's attempted explanation raised a question for the determination of the jury. The jury chose not to believe appellant's version of the events. This it had the prerogative to do. The coin box inside the machine was not accessible to appellant prior to the breakin. Under the circumstances it is universally recognized a finger, palm or bare footprint found in the place where a crime was committed may be sufficient proof of identity. See cases collected at 28 A.L.R.2d 1151.

It is next argued that the trial court abused its discretion in overruling an objection based upon the fact that the appellant had previously answered the question as to whom he informed about finding the coin box in his yard. The questions are said to be prejudicial in that they went to the credibility of his testimony. Certainly, when a defendant becomes a witness in his own defense he subjects himself to cross-examination the same as any other witness concerning any facts that affect his credibility. Toops v. State (1883), 92 Ind. 13; Barnett v. State (1959), 240 Ind. 129, 161 N.E.2d 444. The trial court is given a wide latitude in ruling on matters having to do with the extent of cross-examination of a defendant. Its ruling is reviewable only for an abuse of discretion. Swift v. State (1961), 242 Ind. 87, 176 N.E.2d 117. Likewise, whether a witness may be re-examined with respect to a fact already testified to by him is within the sound discretion of the trial court. Pigg v. State (1896), 145 Ind. 560, 43 N.E. 309. No abuse of discretion has been shown. We find no reversible error in this regard.

It is next asserted that the appellant was denied a fair trial because of the failure to have Negroes on the jury. Appellant has cited no facts to substantiate this claim. There are no facts to substantiate it. The right to an impartial trial precludes systematic and intentional exclusion of any particular class of persons. It does not necessarily mean that every jury, even though there is no intentional exclusion, must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community. In Fay v. New York (1946), 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, reh. den. 332 U.S. 784, 68 S.Ct. 27, 92 L.Ed. 367 the United States Supreme Court stated:

'It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination, and in nearly all cases it has been shown to have persisted over many years.'

Appellant has failed to sustain this burden. Accordingly, we find no error.

Appellant states that: 'The defendant feels as...

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43 cases
  • Merry v. State, 2--774A184
    • United States
    • Court of Appeals of Indiana
    • October 7, 1975
    ...303 N.E.2d 678; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823, or in allowing a question to be repeated, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158. In the case at bar, the defendant has simply asserted that a repetitious question was allowed and the order of proof was va......
  • Blackburn v. State, 370S43
    • United States
    • Supreme Court of Indiana
    • January 24, 1973
    ...Robbins v. State (1971), Ind., 274 N.E.2d 255, 258; Issac v. State (1971), Ind., 274 N.E.2d 231, 237. See also, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158, 160; Schmittler v. State (1950), 228 Ind. 450, 467, 93 N.E.2d 184, The mere fact that another attorney might have conducted ......
  • Mediate v. State
    • United States
    • Supreme Court of Indiana
    • October 16, 1986
    ...when the structure is open to the public but the object is located in an area restricted to authorized persons only. Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d 158 (coin box located in car dealership was taken from vending machine which was forcibly opened). Furthermore, a defendant'......
  • O'Conner v. State, 180S18
    • United States
    • Supreme Court of Indiana
    • January 24, 1980
    ...might affect his credibility. Toops v. State (1883) 92 Ind. 13; Barnett v. State (1959) 240 Ind. 129, 161 N.E.2d 444; Shuemak v. State (1970) 254 Ind. 117, 258 N.E.2d 158. The trial court is given wide latitude in ruling on the extent of cross examination of a defendant. That ruling is revi......
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