Stearsman v. State, 29373

• Decision Date: 07 June 1957
• Docket Number: No. 29373,29373
• Citation: 143 N.E.2d 81,237 Ind. 149
• Parties: George STEARSMAN, Benny Peak, Al Carter, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 81

143 N.E.2d 81

237 Ind. 149

George STEARSMAN, Benny Peak, Al Carter, Appellants, v. STATE of Indiana, Appellee.

No. 29373.

Supreme Court of Indiana.

June 7, 1957.

Rehearing Denied Sept. 17, 1957.

John G. Bunner, Marion J. Rice, Bert C. Cheatham, Jack N. Van Stone, Evansville, for appellants.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., Richard M. Givan, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellants were charged by affidavit in two counts, with the crime of second degree burglary under Acts 1941, ch. 148, § 4, p. 447, being § 10-701(b), Burns' 1956 Replacement, and automobile banditry under Acts 1929, ch. 54, § 3, p. 136, being § 10-4710, Burns' 1956 Replacement, tried by jury, and found guilty on both counts as charged.

Appellants Stearsman and Carter were sentenced to the Indiana State Prison for a term of not less than two nor more than five years on Count 1 of the affidavit, and for a term of not less than ten years on Count 2 of the affidavit; and appellant Peak to the Indiana Reformatory for a period of not less than two nor more than five years on Count 1 of the affidavit, and for a period of not less than ten years on Count 2 of the affidavit.

Errors are assigned here as follows:

'1. That the trial court erred in overruling Appellants' motion for a new trial.

'2. That the trial court erred in overruling each Appellant's motion to quash both counts of the affidavit.

'3. That the trial court erred in overruling each Appellant's motion to suppress evidence.'

We shall consider the alleged errors relied upon for reversal in the order in which they are discussed in appellants' brief.

First: Part I of appellants' argument pertains to specifications 9, 22, 25 and 29 of their motion for a new trial. Under these specifications it is asserted that the trial court erred in overruling appellants' motion for a mistrial because articles, including a wedge, claw hammer, two crowbars, an electric drill, two pairs of gloves and other items, were placed in view and on display before the jury, by the prosecuting attorney, who made no offer to introduce such articles into evidence. To support this contention appellants rely upon Rohlfing v. State, 1952, 230 Ind. 236, 102 N.E.2d 199, 102 N.E.2d 763, and Derry v. State, 1932, 204 Ind. 21, 182 N.E. 701.

In the Rohlfing case a motion to suppress the articles which were displayed at the trial had been sustained, notwithstanding this the prosecuting attorney persisted in displaying such objects before the jury. They were first brought into the court room and placed within view of the jury when the court was giving the preliminary instructions. The attorney for the defendant immediately objected and moved for a mistrial. The court ordered the articles removed and instructed the jury not to consider what had just transpired in arriving at their decision. At the conclusion of the opening statement such articles were again brought into the court room and placed on a table in view of the jury. Defendant's attorney again objected and moved for a mistrial. The court again ordered the articles removed and admonished the jury to disregard them. As in the case at bar, the articles in the Rohlfing case were not offered in evidence.

The case now before us is clearly distinguishable from the Rohlfing case in that (1) no objection was made here by appellants' attorneys to the display of the articles involved until the beginning of the second day of the trial and then the objections, even by the most liberal construction, are addressed only to one wedge. No other objection is shown by the record until the close of the State's evidence; and (2) while it is asserted in appellants' motion for a mistrial that the wedge was the 'subject of a motion to suppress in another proceedings and which motion to suppress was sustained,' we have thoroughly searched the record and have found nothing to indicate that any motion to suppress was ever sustained. On the contrary, the record shows, and is undisputed, that appellants' motion to suppress evidence was, after a full hearing thereon, overruled.

In the Derry case appellant objected to the display of the articles and requested the court to order their removal as soon as they were brought into the court and placed in view of the jury. However, the court permitted them to remain throughout the trial over the persistent objections of appellant, even though none of the articles were offered or introduced in evidence.

In the case at bar no objection to the display of any of the more than fifteen articles was made by appellants until the close of the State's evidence, with the exception of the wedge, which appellants inadvertently and apparently carelessly stated in their motion for a mistrial at the beginning of the second day of the trial, was the subject of a motion to suppress, which motion appellants allege 'was sustained.'

The trial court did not err in overruling appellants' motion for a mistrial at the beginning of the second day of the trial because (1) such wedge had not been suppressed in this case; and (2) no objection to the presence of the articles was made until the second day of the trial and no request for their removal was ever made by appellants or their attorneys.

By their failure to make timely objection to the display of such articles and request their removal from the view of the jury at the earliest opportunity, appellants waived any error which they might have asserted in this court. Blanton v. State, 1954, 233 Ind. 51, 57, 115 N.E.2d 122, 116 N.E.2d 631, 632; Randolph v. State, 1955, 234 Ind. 57, 122 N.E.2d 860, certiorari denied 350 U.S. 889, 76 S.Ct. 145, 100 L.Ed. 783; State ex rel. Johnson v. Reeves, 1955, 234 Ind. 225, 230, 125 N.E.2d 794.

Under the circumstances here there is no merit to appellants' assertion that the trial court erred in refusing to permit them to prove the locations of the disputed articles in the court room and the fact they were in view of the jury and had been suppressed in another proceeding.

Second: Appellants' specifications 10 to 18, inclusive, of their motion for a new trial assert error in the admission of a written transcript of the testimony of Detective Sergeant Akeman, an officer in the Indianapolis Police Department, given at a hearing on the motion to suppress evidence. Sergeant Akeman was the officer in charge of the detailed police who arrested appellants and died of a heart attack while in the witness chair during the hearing on the motion to suppress and before appellants had completed their second recross-examination of the witness.

Two arguments are advanced in support of this contention.

'(a) That State's Exhibit No. 7 was incompetent in its entirety and its admission into evidence was prejudicial to the Appellants.

'(b) That those portions of State's Exhibit No. 7 which contained hearsay, conclusions and other incompetent evidence should have been excluded upon the objections made by the Appellants.'

(a) It should be noted that the offer of the State to introduce such transcribed testimony (State's Exhibit No. 7) excepted that portion of the testimony where appellants' counsel had not completed the recross-examination. It also appears from the record that all of the testimony of Sergeant Akeman on the second recross-examination was, on motion of appellants, stricken from the record in the proceedings on the motion to suppress, hence there appears in State's Exhibit No. 7 only that testimony of the witness Akeman on which appellants had had a full opportunity to, and did, cross-examine.

Appellants objected to the introduction of State's Exhibit No. 7 for the following reasons:

'1. The defendants' attorney had not completed his cross-examination of Gerald Akeman prior to his death;

'2. The issues of the trial in which Gerald Akeman appeared and the issues before this jury are different to the extent that hearsay evidence and other evidence was admitted into evidence properly so by the court for the purpose of determining whether or not there was probable cause. In the case at bar, the question before the jury is guilt or innocence of the defendants and for that reason the evidence of the previous hearing would not be competent in this particular trial and the introduction thereof would cause the jury to become biased and prejudiced against these defendants because of such evidence.'

It appears from the State's offer to introduce Exhibit No. 7 that only that part of Sergeant Akeman's testimony on which appellants had had a full opportunity to cross-examine was introduced as evidence at the trial.

In Wilson v. State, 1911, 175 Ind. 458, 465, 93 N.E. 609, 611, this court said:

'* * * it is well settled that in a criminal prosecution, under certain circumstances, the reproduction of the testimony of a witness upon a former hearing or trial of the same case, where the accused party either cross-examined such witness or was afforded an opportunity to do so, does not contravene the constitutional provision securing to the accused the right of confrontation.' Citing authorities. See also Levi v. State, 1914, 182 Ind. 188, 192, 104 N.E. 765, 105 N.E. 898.

It is well settled in most jurisdictions that the testimony of a witness in a criminal case, which was taken at a former trial or at a preliminary hearing, and whom the accused has had the opportunity to cross-examine, may be reproduced at a subsequent trial. ¹ Annotation, 15 A.L.R., III(a), at pages 515, 516, and cases there cited; Annotation, 21 A.L.R., at page 662, and cases there cited; Annotation, 79 A.L.R., III(a), at page 1397, and cases there cited; Annotation, 122 A.L.R., III(a), at page 427, and cases there cited; Annotation, 159 A.L.R., III(a), at page 1243, and cases there cited. See also Wigmore on Evidence, Vol. V, § 1387, p. 83, and Annotation and Comments, at pages 84-87.

The question of the admission of the testimony of the deceased witness Akeman, under...