Sylvester v. State, No. 25622.

Docket NºNo. 25622.
Citation205 Ind. 628, 187 N.E. 669
Case DateNovember 22, 1933
CourtSupreme Court of Indiana

205 Ind. 628
187 N.E. 669

SYLVESTER
v.
STATE.

No. 25622.

Supreme Court of Indiana.

Nov. 22, 1933.


Appeal from Dekalb Circuit Court; Wm. P. Endicott, Judge.

James H. Sylvester was convicted of vehicle taking, and he appeals.

Reversed, with instructions.


W. W. Sharpless and P. L. De Vitta, both of Garrett, for appellant.

Arthur L. Gilliom and Lesh & Lowther, all of Indianapolis, for the State.


MYERS, Chief Justice.

Appellant was charged by indictment, tried, and convicted by a jury in the court below of vehicle taking. Acts 1921, c. 189, p. 494, § 1, section 2460, Burns' Ann. St. 1926. From a judgment and sentence as in that act provided, he prosecuted this appeal. The only error in this court assigned and not waived is the overruling of his motion for a new trial.

Appellant, in his brief under the heading “Propositions and Points,” challenges the correctness of instruction No. 10 given by the court on its own motion, and complains of the action of the court in refusing to give his tendered instructions Nos. 4 and 5. None of these instructions were assigned as causes for a new trial. If the trial court erred in either of these matters, it should have been given an opportunity to correct it. That was not done. The instructions are not before us. Kirts v. State, 198 Ind. 39, 43, 151 N. E. 132, 152 N. E. 1;Smith v. State, 203 Ind. 561, 181 N. E. 519, 81 A. L. R. 1154;Hunt v. State, 191 Ind. 406, 133 N. E. 8;Cosilito v. State, 197 Ind. 419, 423, 151 N. E. 129;Kernodle v. Gibson, 114 Ind. 451, 17 N. E. 99.

Appellant's motion for a new trial and his brief on the want of evidence, incidents of the trial, rulings of the court on admission and rejection of evidence, and conduct of the state's attorney during the trial and in the

[187 N.E. 670]

presence of the jury, are the additional subjects earnestly argued in support of his claim of an unfair trial. Regardless of our impression upon the entire record, the judgment must stand or fall as the result of an impartial consideration of the events only on which the jury may have relied for its verdict.

The Attorney General insists that the questions covered by appellant's brief were either not properly saved in the trial court, or the rulings of the court were in his favor. It is true appellant's brief as to certain rulings of the court on the admission and rejection of the evidence does not disclose questions, objections, and rulings with that certainty required by the rules of this court. In some of these instances the record is also deficient.

The record in this case is so exceptional with reference to the events which occurred at the trial that it is impossible to particularize the things or the combination of circumstances justifying the jury's verdict. The persistency of the state's attorney in applying improper and irrelevant questions to witnesses might well support the conclusion that he proceeded with the trial upon the theory that the end justified the means. Such a position on the part of an attorney in the trial of a case cannot be approved. The apparent exhibition of such purpose should be immediately and positively controlled by the trial court. Martin v. Lilly, 188 Ind. 139, 146, 121 N. E. 443.

The only evidence connecting appellant in any manner with the stolen automobile came from the mouth of a single witness. That witness, the admitted thief, admitted highway robber and admitted deserter from the navy was, as to each of his material statements concerning appellant's connection with the stolen car, directly contradicted by himself under oath, by disinterested witnesses, by circumstantial evidence, and by physical facts. We are not unmindful of the rule that errors of fact are for the trial court and errors of law are for the court having appellate jurisdiction, nor are we oblivious of the rule that a conviction may be sustained supported only by the evidence of an accomplice; but along with these rules is another, equally as important, requiring substantial evidence to support each fact essential to authorize a finding of guilty. This last rule places the evidence before the court on appeal, not for the purpose of weighing it, or for the purpose of determining the facts when there is actual conflict, but for the purpose of deciding, as a question of law, whether or not there is substantive evidence in support of the required material facts essential to a conviction. It is not enough to sustain a conviction that the evidence, when given full faith and credit, may warrant a suspicion or amount to a scintilla. Sullivan v. State, 200 Ind. 43, 47, 161 N. E. 265;Cleveland, etc., Ry. Co. v. Wynant, 134 Ind. 681, 686, 34 N. E. 569.

This court, for the past few years, has been confronted, as never before, with convictions resting entirely upon the testimony of criminals of the very worst type, and in a majority of these cases, before final disposition of them on appeal, our attention has been drawn to a petition for a writ of coram nobis based upon affidavits of the person or persons on whose testimony the conviction rested to the effect that their evidence given at the trial was wholly false and supplemented by a statement of alleged facts completely exonerating the defendant from criminality. In the instant case the reverse of the foregoing procedure took place below, but respect for the truth and the effect of an oath on the conscience of such a witness is the same. Experience admonishes us that convictions, resting upon the testimony alone of witnesses of the character the one in this case is shown to have, should be carefully scrutinized, not only by the jury so instructed in this case, but by the court with the view of determining whether there was any substantial evidence before the jury to sustain each issuable fact. We use the word “substantial” as meaning more than “seeming or imaginary.” Whether the legally admitted evidence may tend to establish facts from which guilt may be reasonably inferred is a question of law for the trial court when presented by a motion for a peremptory instruction in favor of the defendant at the close of the state's evidence, or at the close of the entire evidence; or by a motion for a new trial for insufficient evidence. The action of the court on any one of these motions may be saved and presented for review on appeal. Furthermore, in the interest of a...

To continue reading

Request your trial
39 practice notes
  • Wedmore v. State, No. 29377
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1957
    ...the means as far as the appellant was concerned, but we cannot condone such a rule for administering justice. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669. When the State insisted on carrying the prosecution through to its tainted conclusion after the perjuries had been discovered, ......
  • McCague v. New York, C. & St. L. R. Co., No. 28266.
    • United States
    • Indiana Supreme Court of Indiana
    • February 26, 1947
    ...as contrasted with a mere scintilla, to support a decision or verdict in favor of the one with the burden. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669. Evidence has been held by this court to be the means by which an event or occurrence is shown. Woodfill et al. v. Patton et al., 1......
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...Ind. 681, 686, 34 N.E. 569. '* * * We use the word 'substantial' as meaning more than 'seeming or imaginary." Sylvester v. State, 1933, 205 Ind. 628, 631, 632, 187 N.E. 669, 670. [236 Ind. 61] 'There must be some substantial evidence of probative value from which a reasonable inference of t......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...may warrant a suspicion, a mere possibility or amount to a scintilla. It must be more than seeming or imaginary. Sylvester v. State, 1933, 205 Ind. 628, 631, 187 N.E. 669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v......
  • Request a trial to view additional results
39 cases
  • Wedmore v. State, No. 29377
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1957
    ...the means as far as the appellant was concerned, but we cannot condone such a rule for administering justice. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669. When the State insisted on carrying the prosecution through to its tainted conclusion after the perjuries had been discovered, ......
  • McCague v. New York, C. & St. L. R. Co., No. 28266.
    • United States
    • Indiana Supreme Court of Indiana
    • February 26, 1947
    ...as contrasted with a mere scintilla, to support a decision or verdict in favor of the one with the burden. Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669. Evidence has been held by this court to be the means by which an event or occurrence is shown. Woodfill et al. v. Patton et al., 1......
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...Ind. 681, 686, 34 N.E. 569. '* * * We use the word 'substantial' as meaning more than 'seeming or imaginary." Sylvester v. State, 1933, 205 Ind. 628, 631, 632, 187 N.E. 669, 670. [236 Ind. 61] 'There must be some substantial evidence of probative value from which a reasonable inference of t......
  • Yessen v. State, No. 28601
    • United States
    • Indiana Supreme Court of Indiana
    • May 24, 1950
    ...may warrant a suspicion, a mere possibility or amount to a scintilla. It must be more than seeming or imaginary. Sylvester v. State, 1933, 205 Ind. 628, 631, 187 N.E. 669; Sullivan v. State, 1928, 200 Ind. 43, 47, 161 N.E. 265; Osbon v. State, 1938, 213 Ind. 413, 424, 13 N.E.2d 223; Hiner v......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT