Sylvester v. State
| Decision Date | 22 November 1933 |
| Docket Number | No. 25622.,25622. |
| Citation | 205 Ind. 628,187 N.E. 669 |
| Parties | SYLVESTER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
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.
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 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 fair trial, it is important that the trial court should be alert respecting the various activities before the jury during the trial, for the reason, as a general proposition, jurors “are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences and conclusions without adequate foundation.” Underhill, Criminal Evidence (3d Ed.) § 150. Hence, evidence showing, or tending to show, that the accused has committed any crime wholly independent of the offense for which he is on trial, is forbidden and is generally regarded as error. There are however, exceptions to this rule, sustained only from necessity of the case. While there is no fixed rule of limitation as to the extent of cross–examination of a defendant who is a witness in his own behalf, yet with respect to questions relating to the commission of distinct offenses, the concensus of opinion of the courts and text–writers is to the effect that each case must stand on its own circumstances. Wharton's Criminal Evidence (10th Ed.) § 50. This author, section 52, states that: “Judgments of conviction have frequently been set aside because of the conduct of counsel for the prosecution in stating and insinuating other offenses than the one for which the accused was on trial, either in argument, or by repeatedly asking rejected questions and commenting on what the answers would have been if allowed.”
In the instant case the alleged offense occurred on May 19, 1926. Appellant was indicted May 21, 1927. He was tried April 16, 1928. Looking to the unquestioned facts, it appears that one Lawrence Mallahan and appellant were arrested and placed in jail on the same day. On that day the sheriff made some investigation with reference to each of these parties' connection with the automobile, and from all of the circumstances of which he then had knowledge, he held Mallahan and released appellant. Mallahan was thereupon indicted by the grand jury of Dekalb county. He was arraigned and entered a plea of guilty in the Dekalb circuit court. The judge before pronouncing judgment questioned Mallahan concerning the facts surrounding the alleged theft, and received answers positively denying that any other person had anything to do with taking or secreting the car. After two or three weeks in the reformatory, Mallahan, in the presence of a reformatory officer, appellant, and his attorney, omitting the caption and jurat, made the affidavit following: “I, Lawrence Mallahan being duly sworn says he knows J. H. Sylvester; that he, Sylvester, had nothing whatever to do in aiding or assisting me in taking the automobile for which I am serving time; that he Sylvester did not know that I stole the automobile and knew nothing about the fact that the automobile was stolen; that he never secreted it for me nor had any knowledge where the car came from; that the only car that Sylvester had possession of was one that I sold him and told him I was the owner thereof; that he knew nothing as to where I obtained the car.”
At the trial Mallahan testified that in the evening of...
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