Stillson v. State

• Decision Date: 01 February 1933
• Docket Number: No. 26054.,26054.
• Citation: 184 N.E. 260,204 Ind. 379
• Parties: STILLSON v. STATE.
• Court: Indiana Supreme Court

204 Ind. 379

184 N.E. 260

STILLSON

v.STATE.

No. 26054.

Supreme Court of Indiana.

Feb. 1, 1933.

Appeal from Delaware Circuit Court; Leonidas A. Guthrie, Judge.

Lucius Stillson was convicted of burglary, and he appeals.

Affirmed.

F. Clayton Mansfield, of Muncie, for appellant.

James M. Ogden, Atty. Gen., and R. L. Bailey, Sp. Asst. Atty. Gen., for the State.

TREANOR, C. J.

Appellant was convicted of the crime of burglary. He assigns as error the overruling of his motion for a new trial and the overruling of his motion in arrest of judgment. Of the grounds contained in appellant's motion for a new trial he discusses under Points and Authorities only the third, relating to instructions given by the court, and the sixth to tenth, inclusive, relating to certain evidence alleged to have been erroneously admitted by the trial court.

Under Points and Authorities appellant complains of instructions Nos. 18 and 19. The part of instruction No. 18 which is objected to is as follows: “If the evidence introduced on the part of the defendant to prove an alibi, when considered with all the other evidence in this case, is sufficient to raise in your minds a reasonable doubt of the defendant's guilt, he should be acquitted, though such evidence may fail to account for his whereabouts during all the time the offense is alleged to have been committed.” Appellant's objection to this instruction is that it “invaded the province of the jury and tended to mislead the jury in that it suggested to the jury that the evidence introduced by the appellant to prove an alibi failed to account for his whereabouts during all the time the offense was alleged to have been committed” and “cast suspicion on the appellant's evidence to prove an alibi.” Appellant cites Sater v. State (1877) 56 Ind. 378;Shenkenberger v. State (1900) 154 Ind. 630, 640, 57 N. E. 519; and Shank v. State (1865) 25 Ind. 207. We do not think that instruction No. 18 casts any suspicion upon appellant's evidence or violates the rules laid down by this court in considering the improper instructions referred to in the cases which appellant cites. But appellant urges specially that evidence of defense witnesses “tended to show the appellant's whereabouts during all the time the offense was alleged to have been committed” and that “it was error for the court to intimate or suggest to the jury that the appellant's evidence failed to account for his whereabouts during all the time in question.” But an examination of the evidence of the defense witnesses shows that, of the ten witnesses by whom appellant attempted to establish an alibi, only four, including appellant, testified to facts which, if believed, would of themselves have proved an alibi. The testimony of the other six witnesses, unaided by the testimony of the four, failed to account for the whereabouts of the defendant at the time of the alleged commission of the offense charged. We think the instruction safeguarded the interests of the appellant and did not “intimate or suggest” that the appellant's evidence failed to account for his whereabouts during all the time in question.

Instruction No. 18 contains the same language as was contained in instructions Nos. 2 and 3 disapproved by this court in Jacoby v. State (1932) 180 N. E. 179, which the appellant cites. The objection to the instructions in that case was based upon the fact that the appellant was charged and all the evidence for the state tended to prove him guilty, if guilty at all, as a participating principal and not as having “aided or abetted, hired or procured” the crime to be committed. This court has held that a defendant may be charged as a principal and evidence may be introduced to prove that “another person was the principal and that appellant but aided or abetted such principal in the commission of the felonious crime.” Brunaugh v. State (1910) 173 Ind. 483, 503, 507, 90 N. E. 1019. Also Simpson v. State (1925) 195 Ind. 633, 637, 146 N. E. 747. In view of the foregoing, the statement of this court in Jacoby v. State, supra, was inaccurate; but the vice of the alibi instructions in Jacoby v. State was that it invited the jury to disregard the allegations in the indictment and the state's evidence and to find the defendant guilty even if he should have established a perfect alibi as to physical presence and actual participation when the allegations in the affidavit charged, and all the state's evidence tended to prove, a present active participation in the crime.

Instruction No. 19, to which appellant objects, is as follows: “The court instructs you that each juror must act upon his own judgment of the facts as they are presented to him in the evidence adduced, and cannot rightfully yield his honest convictions to those of some one else, or even to those of all the members of the jury. It is the duty of jurors to consider carefully every part of the evidence, and, if necessary, reconsider it, and to hear and consider the views and argument of their fellow-jurors, but at last each one of you must act upon his own judgment, and not that of another.” Appellant contends that this instruction “was erroneous for the reason that a juror cannot yield his honest convictions at all, either rightfully or wrongfully.” The instruction was a correct statement of the law and could not be construed as authorizing a juror to yield his honest convictions.

The sixth and seventh grounds of appellant's motion for a new trial were based upon the alleged erroneous rulings of the court in permitting appellant's witness Shroyer to answer on cross-examination questions concerning the cashing of checks for the prosecuting witness at the witness Shroyer's bank. Watt Smith, the prosecuting witness, and his daughter, Mrs. Routh, upon cross-examination by appellant's counsel testified in effect that the money which was alleged to have been stolen from Smith's house had been obtained by Mrs. Routh by cashing a check drawn by Smith on the Delaware or Merchants' Bank on November 11th. Shroyer testified as cashier of the Merchants' National Bank that he had charge of the records of the bank; that he had examined the records; that Smith carried no deposit in that bank subject to check during the month of November. On cross-examination the state proved by the witness, over appellant's objection, that the witness understood Smith cashed quite a few checks through the bank all the time and that it would have been possible for Smith to cash several pay-roll checks at the bank of which the witness would have had no record. “It is a familiar rule of practice in this state that cross-examination must be confined to the subject-matter of the examination in chief; but when the direct examination opens on a general subject the cross-examination may go into any phase of that subject, and cannot be restricted to mere parts of a general and continuous subject which constitutes a unity.” Westfall v. Wait (1905) 165 Ind. 353, 73 N. E. 1089, 1090, 6 Ann. Cas. 788;Osburn v. State (1905) 164 Ind. 262, 73 N. E. 601. “The character and extent of the cross-examination to be permitted is under the control of the [trial] court in the exercise of a sound legal discretion. *** A cause will not be reversed because of any ruling regulating the extent of the cross-examination, unless it appears that there has been an abuse of such discretion.” Savich v. State (1928) 200 Ind. 417, 164 N. E. 273, 274;Eacock v. State (1907) 169 Ind. 488, 82 N. E. 1039;Denny v. State (1921) 190 Ind. 76, 129 N. E. 308;Foust v. State (1928) 200 Ind. 76, 161 N. E. 371;Henry v. State (1925) 196 Ind. 14, 146 N. E. 822. The facts as to what the witness' records showed, and his knowledge of whether Smith cashed checks at the Merchants' National Bank, were phases of the general subject concerning which the witness testified in chief and might, in the sound discretion of the trial court, be properly admitted.

The eighth and ninth grounds of appellant's motion for new trial relied upon the alleged erroneous action of the trial court in requiring the appellant to answer, over objections, on cross-examination, the following questions:

“Did you know then you were violating the law when you were playing poker, running that gambling joint?”

“I will ask you if you weren't on the 6th day of March, 1919, arrested for grand larceny on a warrant issued from this court for stealing an automobile from Frank Greenwalt?”

On direct examination the appellant had testified that he had run a poker game and that he had never been charged with robbery or larceny in his life. Many decisions of this court uphold the practice of permitting questions of the nature of the foregoing to be asked in the cross-examination of a defendant who becomes a witness in his own behalf. In Parker v. State (1894) 136 Ind. 284, 288, 35 N. E. 1105, 1106, appears the following: “The appellants, on the trial of the cause, testified in their own behalf, and the state on cross-examination, over their objection, was permitted to ask them as to certain arrests and prosecutions against them occurring in the past, for the purpose of discrediting their testimony. It is contended that in this ruling the trial court erred. We cannot agree with the appellants in this contention. The testimony of an accused who testifies in his own behalf should be subject to the tests applied to the testimony of any other witnesses. It is not to be supposed that the testimony of a witness who is morally depraved, and an habitual law breaker, will, as a rule, be given the same credit as a witness who is of known moral character. In the case of Bessette v. State, 101 Ind. 85, it was said by this court: ‘It is proper, within the bounds of propriety, to be controlled by the trial court, that the character and antecedents of a witness may be subject to a test on cross-examination, and that questions which go to exhibit his motives and interests as a witness, as well as those tending to show his...