State v. Robbins

• Citation: 46 N.E.2d 691,221 Ind. 125
• Decision Date: 17 February 1943
• Docket Number: 27753.
• Parties: STATE v. ROBBINS.
• Court: Indiana Supreme Court

46 N.E.2d 691

221 Ind. 125

STATE v. ROBBINS.

No. 27753.

Supreme Court of Indiana

February 17, 1943

Arthur L. Hart, of Vincennes, George N. Beamer, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for appellant.

Carl M. Gray, of Petersburg, and Sherman G. Davenport, Harry R Lewis, Horace A. Foncannon, and John Rabb Emison, all of Vincennes, for appellee.

PER CURIAM.

This is an appeal upon questions reserved by the state pursuant to the third clause of § 9-2304, Burns' 1942 Replacement, § 2368, Baldwin's 1934. There are eleven assignments of error. The first is covered by the second which asserts that the 'court erred in sustaining appellee Herman Robbins' motion to strike out petition of the state to prohibit attorneys from participating in the cause.' Assignments from three to nine inclusive present alleged errors in excluding evidence and will be considered together. The tenth assignment is error in sustaining the motion of appellee, made at the close of appellant's evidence, for a directed verdict of not guilty, and the eleventh is error in instructing the jury to return such a verdict.

A motion to dismiss the appeal has already been denied. In it appellee claims that 'no question is presented * * * which can be determined without determining a question of fact.' Our opinion refutes this claim. The motion asserts that the purpose of the statute, supra, is to obtain from this court opinions of law which shall declare a rule for guidance of inferior courts on questions likely again to arise in the trial of criminal prosecutions. To this we assent, but we do not agree that 'no such questions are presented in this appeal.' And appellee's conclusion that 'the decision of those presented would, in the main confuse rather than clarify the law' is a non sequitur. If there is confusion, it usually is found in the opinions not the decisions.

In his main brief appellee also says that the questions are moot. This is true of any question reserved under this statute. But for two thirds of a century such appeals have been authorized by the legislature and acted upon by this court. We do not feel justified in refusing to follow these precedents though by so doing we might avoid a quite distasteful task.

Appellee's belief that our decision will require determination of questions of fact is based upon five cases. In State v. Van Valkenburg, 1878, 60 Ind. 302, the only assignment was that the court erred in acquitting the defendant. The court did not entertain the appeal because the question apparently required weighing the evidence. In State v. Hall, 1877, 58 Ind. 512, there was an agreed statement of facts below and acquittal by the court. The only question on the State's appeal was 'Whether the evidence was sufficient to establish the defendant's guilt.' It may be that the court was correct in concluding that it thus was asked to weigh evidence and decide a question of fact.

But in State v. Campbell, 1879, 67 Ind. 302, citing as authority the Hall and Van Valkenburg cases, it seems clear that the court reasoned erroneously to its conclusion. It held that it should not decide whether the trial court erred in giving a peremptory instruction of acquittal on a charge of murder. The propriety of giving the instruction depended upon whether or not there was any evidence tending to establish criminal intent. An appellate court may not decide that the evidence does or does not establish guilt but it may, and in most criminal appeals does, decide whether or not there is sufficient evidence in the record which, if believed, would warrant the jury's decision as to the ultimate fact of guilt. In this kind of an appeal we will not determine the credibility of testimony. This is a part of the jury's function in weighing the evidence and the trial court's function in passing upon a motion for a new trial. But we may review the evidence. Such review is an examination to determine whether there was a total lack of evidence upon some ultimate issue of fact. If so, we say there was no issue for the jury and we decide as a matter of law that the court did not err in giving a peremptory instruction. If however there was some evidence which, if believed, would support every ultimate issue of fact, we decide as a question of law that the court erred in giving the peremptory instruction. The court in the Campbell case overlooked this distinction. Two other cases are cited by appellee, State v. Overholser, 1879, 69 Ind. 144, and State v. Phillips, 1900, 25 Ind.App. 579, 58 N.E. 727. The former is founded on the Campbell case and subject to the same criticism. The latter is like the Van Valkenburg case and correctly decided.

We turn now to the questions presented in this appeal and shall consider them in inverse order to the order of assignment.

Appellee, who at the time of the alleged offense and throughout the subsequent proceedings was judge of the Superior Court of Knox County, was indicted in two counts for sodomy under § 10-4221, Burns' 1942 Replacement, § 2603, Baldwin's 1934. The first charged, in the language of the statute, commission of 'the abominable and detestable crime against mankind' with a twelve year old girl. The second we need not notice. The date of the offense alleged in the indictment was April 18, 1939. Notice of alibi pursuant to § 9-1631, Burns' 1942 Replacement, § 2263-1, Baldwin's Supp.1935, was filed and the state chose to rely upon June 28, 1939, as the date when the offense was committed. Only two witnesses were permitted to testify, the girl above mentioned and another girl about the same age. The latter testified that they had been in appellee's private office together on a prior occasion but that she was not there on the date of the alleged offense. The former related a repulsive story of appellee's misconduct with both girls in his chambers on that date. When the state rested appellee asked for a peremptory instruction of not guilty.

Enough has been written in the books about this crime. Glover v. State, 1912, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; Young v. State, 1924, 194 Ind. 221, 141 N.E. 309; Connell v. State, 1939, 215 Ind. 318, 19 N.E.2d 267; Sanders v. State, 1940, 216 Ind. 663, 25 N.E.2d 995. Examination of the records in each of them reveals that in the Young and Connell cases the misconduct of the accused was similar to that charged against appellee. If the evidence in those cases was sufficient to sustain the verdicts, here it was sufficient to take the case to the jury. Fortunately we need not be more specific.

The conclusion of the trial judge was the product of incorrect reasoning shown by a written opinion which preceded and is a part of the entry of the giving of the peremptory instruction. After stating the issues, quoting the evidence and attempting to define the offense, he calls attention to the fact that the girl without prearrangement entered the appellee judge's chambers about 10:30 A. M. while the court was in session and after its adjournment the 'alleged rendezvous took place in the court's chambers.' He continues: 'The complaining witness says that she and a girl companion were together all of the time. The girl companion testified that she was not there at all. * * * The State of Indiana by offering as witnesses both the complaining witness and her alleged companion necessarily asks that they both be believed. * * * I might say here that the doctrine of falsus in uno falsus in omnibus, which means false in one thing, false in everything, might be applied because the response(s) of these two witnesses were material to a fair method of reaching a conclusion. The testimony of both of them the court or jury would be justified in casting from his mind entirely.'

This would have been a legitimate argument to make to the jury. The judge apparently convinced himself but it was not his turn to be convinced. First the jury must decide upon the credibility of witnesses. If the judge does not believe the testimony on which the verdict is based, he may and should set it aside. If the rule should obtain that a judge may direct a verdict in accordance with his opinion as to the weight of the evidence, the result would be the denial of the constitutional right to a jury trial.

In his written opinion the trial judge also refers to what he considers a 'physical impossibility' for the crime, as defined by him, to have been committed. We doubt the correctness of his definition but, if it be conceded, the acts were not impossible. Their improbability would not justify his withdrawing the case from the jury.

We can well understand the trial judge's reluctance to believe that a man occupying appellee's position in the community could be guilty of such infamous misconduct but, we repeat, since this was a jury trial and there was evidence, which, if believed, would sustain a conviction, the jury had the first right to pass upon its credibility.

In an appeal like this, State v. Kubiak, 1936, 210 Ind 479, 480, 4 N.E.2d 193, the same question we are now considering was determined as follows: 'It is thoroughly settled by the decisions in this state that a peremptory instruction directing a verdict can only be given where there is a total absence of evidence upon some essential issue, or where there is no conflict in the evidence, and it is susceptible of but one inference and that inference is favorable to the party asking the instruction. Watson's Rev. of Works' Practice and Forms, § 1685. The witnesses had testified positively to material facts which sustained the state's case. There was therefore not a total absence of testimony. Whether the state had proven its case, after this testimony was in, depended upon whether the jury would give credence to the testimony. Where a...