Swanson v. State, No. 27889.

Docket NºNo. 27889.
Citation52 N.E.2d 616, 222 Ind. 217
Case DateJanuary 26, 1944
CourtSupreme Court of Indiana

222 Ind. 217
52 N.E.2d 616

SWANSON
v.
STATE.

No. 27889.

Supreme Court of Indiana.

Jan. 26, 1944.


John Swanson was convicted of criminal abortion, and he appeals.

Judgment reversed with instructions.

[52 N.E.2d 617]

Appeal from Allen Circuit Court; William H. Schannen, Judge.
Parrish & Parrish and Otto E. Grant, all of Fort Wayne, and Guy Dausman, of Goshen, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, Asst. Deputy Atty. Gen., and Frank E. Coughlin, Asst. Deputy Atty. Gen., for appellee.


RICHMAN, Judge.

Appellant was convicted of the offense of criminal abortion charged in an indictment based on § 10-105, Burns' 1942, Replacement, § 2428, Baldwin's 1934. Among the numerous errors assigned in his motion for a new trial was the giving of the following instruction tendered by appellee: ‘The law gives persons accused of crime the right to testify in their own behalf, but their credibility and the weight to be given to their testimony are matters exclusively for the jury. Therefore, in weighing the testimony of the defendant in this case, you have the right to take into consideration the manner of his testifying, the reasonableness or unreasonableness of his account of the transaction, and his interest in the result of the case, as affecting his credibility. You are not required to receive blindly the testimony of such accused person as true, neither are you at liberty to disregard his testimony, but you are to give it due consideration, and to determine whether or not his statements are true, and made in good faith, or only for the purpose of avoiding conviction.’

The giving of substantially the same instruction has been held to be reversible error in numerous cases, including the following: People v. Arnold, 1910, 248 Ill. 169, 93 N.E. 786;People v. Munday, 1917, 280 Ill. 32, 117 N.E. 286; Id., 254 U.S. 638, 41 S.Ct. 13, 65 L.Ed. 451;Donner v. State, 1904, 72 Neb. 263, 100 N.W. 305,117 Am.St.Rep. 789;Fletcher v. State, 1909, 2 Okl.Cr. 300, 101 P. 599, 23 L.R.A.,N.S., 581; Bridges v. United States, 1909, 3 Okl. 64, 104 P. 370;State v. White, 1895, 10 Wash. 611, 39 P. 160,41 P. 442. In Fletcher v. State, supra [2 Okl.Cr. 300,101 P. 608, 23 L.R.A.,N.S., 581], the court says: ‘We think that it is error for the court to single out any special witness, personally, and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness and should be treated

[52 N.E.2d 618]

by both the court and the jury just as other witnesses are treated-no better and no worse.’

It should be noted that while in the Illinois cases, and perhaps others, the instruction is condemned on other grounds, apparently the credibility of the testimony of a party is there permitted to be the subject of a separate instruction. In this respect the cases are out of line with the rule stated, supra, by the Oklahoma court and the rule which has been recognized in Indiana. The following cases are pertinent: Unruh v. State ex rel. Baum, 1886, 105 Ind. 117, 4 N.E. 453;Bird v. State, 1886, 107 Ind. 154, 8 N.E. 14;Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892;Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983;Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and derogatory emphasis, the subject of appellant's credibility could not be cured by instructions as to the credibility of witnesses in general. For this error the judgment must be reversed.

It is unnecessary to notice other alleged errors...

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21 practice notes
  • Blue v. State, No. 28094.
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1946
    ...bring about a just one.’ Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314, quoted in Swanson v. State, 1944, 222 Ind. 217, 52 N.E.2d 616. Similar views are found in the following quotations: ‘Prosecutors should be zealous in their efforts to enforce the criminal ......
  • Turner v. State, No. 470S93
    • United States
    • Indiana Supreme Court of Indiana
    • April 4, 1972
    ...to comment adversely on the accused's own testimony. Taylor v. State (1972), Ind., 278 N.E.2d 273, relying on Swanson v. State (1944), 222 Ind. 217, 52 N.E.2d 616, and Alder v. State (1958), 239 Ind. 68, 154 N.E.2d 716; Bohan v. State (1923), 194 Ind. 227, 141 N.E. 323, relying on Hiatt v. ......
  • Blue v. State, 28094.
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1946
    ...bring about a just one.' Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314, quoted in Swanson v. State, 1944, 222 Ind. 217, 52 N.E.2d 616. Similar views are found in the following quotations: 'Prosecutors should be zealous in their efforts to enforce the criminal ......
  • Lottie v. State, No. 779S200
    • United States
    • Indiana Supreme Court of Indiana
    • June 23, 1980
    ...to witnesses generally and would be error. Taylor, supra; Alder v. State, (1958) 239 Ind. 68, 154 N.E.2d 716; Swanson v. State, (1943) 222 Ind. 217, 52 N.E.2d The appellant tendered an instruction which read: While you are entitled to draw reasonable inferences from the evidence, you are no......
  • Request a trial to view additional results
21 cases
  • Blue v. State, No. 28094.
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1946
    ...bring about a just one.’ Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314, quoted in Swanson v. State, 1944, 222 Ind. 217, 52 N.E.2d 616. Similar views are found in the following quotations: ‘Prosecutors should be zealous in their efforts to enforce the criminal ......
  • Turner v. State, No. 470S93
    • United States
    • Indiana Supreme Court of Indiana
    • April 4, 1972
    ...to comment adversely on the accused's own testimony. Taylor v. State (1972), Ind., 278 N.E.2d 273, relying on Swanson v. State (1944), 222 Ind. 217, 52 N.E.2d 616, and Alder v. State (1958), 239 Ind. 68, 154 N.E.2d 716; Bohan v. State (1923), 194 Ind. 227, 141 N.E. 323, relying on Hiatt v. ......
  • Blue v. State, 28094.
    • United States
    • Indiana Supreme Court of Indiana
    • June 21, 1946
    ...bring about a just one.' Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314, quoted in Swanson v. State, 1944, 222 Ind. 217, 52 N.E.2d 616. Similar views are found in the following quotations: 'Prosecutors should be zealous in their efforts to enforce the criminal ......
  • Lottie v. State, No. 779S200
    • United States
    • Indiana Supreme Court of Indiana
    • June 23, 1980
    ...to witnesses generally and would be error. Taylor, supra; Alder v. State, (1958) 239 Ind. 68, 154 N.E.2d 716; Swanson v. State, (1943) 222 Ind. 217, 52 N.E.2d The appellant tendered an instruction which read: While you are entitled to draw reasonable inferences from the evidence, you are no......
  • Request a trial to view additional results

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