Temple v. State

Decision Date06 February 1964
Docket NumberNo. 30288,30288
Citation195 N.E.2d 850,245 Ind. 21
PartiesPhillip Jon TEMPLE and Kenneth Pinkerton, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Richard M. Orr, Money, Orr, Bridwell & Fink, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., and David S. Wedding, Deputy Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

Appellants were tried and convicted by a jury for the crime of armed robbery and sentenced to 10 years' imprisonment in the lindiana state reformatory.

Appellants here argue five grounds for reversal. The first four deal with the admission of evidence and alleged misconduct on the part of the prosecuting attorney. The last asserted error is that the verdict was not sustained by sufficient evidence.

Because the prejudicial effect, if any, of all other asserted errors must, in this case, be considered in the light of the evidence in support of the conviction, we consider first the conclusive nature of the evidence herein. Thereafter, we consider the other asserted errors, for the purpose of determining whether or not they were, in fact, prejudicial to the appellants.

Notwithstanding appellants' arguments that the evidence is insufficient to sustain the verdict, we are, in fact, confronted by a unique circumstance where the evidence as to the guilt of each of the appellants was no only (1) established beyond a reasonable doubt by the testimony of several witnesses [some of whom were present at the scene of the robbery and others to whom appellant Pinkerton admitted having committed the crime], but (2) was also without conflict or contradiction. 1

Under such circumstances, even though there may have been error in the course of the trial with regard to the admission of such evidence or the conduct of the prosecutor, such error will be considered harmless, unless it appears that the asserted error was, in some way, prejudicial to the accused. See: Rickman v. State; Lawrence v. State (1952), 230 Ind. 262, 103 N.E.2d 207; Hedrick v. State (1951), 229 Ind. 381, 98 N.E.2d 906; Wolfe v. State (1929), 200 Ind. 557, 159 N.E. 545; The People v. Pelkola (1960), 19 Ill.2d 156, 166 N.E.2d 54; Flandell v. State (1944), 31 Ala.App. 520, 19 So.2d 401; 5 A C.J.S. Appeal and Error § 1724, p. 923; 3 Am.Jur. 576, § 1026; 5 Wharton, Criminal Law and Procedure, § 2255 (12th ed. 1957); Ewbanks Indiana Criminal Law, § 552, p. 366; F., W. & H.Ind. Tr. & App.Pract., § 2785, p. 365; Acts 1905, ch. 169, § 334, p. 584, being § 9-2320, Burns' 1956 Repl.

We, therefore, next consider the other asserted errors to determine whether, under the circumstances of this case, they were so prejudicial as to constitute reversible error. All such asserted errors arose in connection with the interrogation of the first witness in the case, one Thomas Sullivan, a partowner and bartender of the tavern which was robbed by appellant. His testimony and the events occurring during his interrogation, which are alleged to constitute error, are as follows:

About 11:00 A.M., November 10, 1960, a man came in the front door of the tavern, his face disguised. At about the same time another man wearing a stocking over his face, a trench coat and gloves, and carrying a gun, came in the back door. While the first man, who Sullivan identified as Temple, held a gun on him and the rest of the customers, the other man, later identified by other witnesses as Pinkerton, came up and took the money out of the cash register, which contained about $2,175.00. The two men then shoved the witnesses into the women's rest room, put the juke box against the door, and fled.

Witness Sullivan and the customers stayed in the rest room 'about five seconds' after they heard the door slam, then Sullivan ran behind the bar, got another gun, 'commandeered' a car, and followed a truck which was seen pulling away from the back door. He saw that the men in the truck were not the men who had committed the robbery, so he came back to the tavern. When he arrived, Gene Marshall, one of the customers present at the time of the robbery [who, at the time of the trial, was somewhere in Louisana], was bringing in a man whom Sullivan described as about the 'same build' as the robber who had worn a stocking over his face, trench coat, and gloves.

The prosecutor then asked the witness: 'What then happened?' to which question counsel for appellants objected on two grounds; first, that the question called for a narrative answer, which deprived the appellants of the right to object to specific questions on a question and answer basis; and, secondly, because the question related to a matter subsequent to the commission of the crime and was therefore not properly a part of the case in chief, 'being beyond the res gestae and corpus delicti.' The objection was overruled, and the witness then stated that Marshall brought in Pinkerton [whom Sullivan later admitted that he could not positively identify] and laid him on the floor, whereupon the witness Sullivan pointed a gun at him and told him he would give him three seconds to tell him where the coat with the money was, whereupon the man [later identified positively by another witness as Pinkerton] stated that the coat was out in the street.

Thereafter counsel for appellants moved the court to suppress all the testimony of witness Sullivan as to events which occurred after the alleged robbers left the tavern. The court, after having the question and answer reread, overruled the motion. However, he admonished the jury 'to disregard the answer of Mr. Sullivan regarding any statement made by Mr. Pinkerton at the point of a gun or [regarding] any coat obtained as the result of this admission.' And the court further admonished the jury to disregard all testimony of the witness as to the co-defendant Temple. Appellants then moved that the submission of the case be withdrawn from the jury, for the reason that the objectionable testimony had been further re-emphasized and implanted in the minds of the jury so that its prejudicial effect could not be erased. The motion was overruled.

Witness Sullivan was then asked if he could point out the man who was 'brought back' into the tavern by Gene Marshall, to which he replied in the affirmative. Appellants objected to the use of the term 'brought back' because it implied that the person to whom it referred was one of the robbers, which fact had not been proved. The objection was sustained, However, the prosecuting attorney argued that it was in the record that the person was 'brought back' into the tavern. The objection was again sustained. Appellants moved that 'the jury be admonished to disregard the prosecutor's improper statement concerning the state of the record.' The court admonished the jury to disregard the question, as asked.

The witness then identified State's Exhibit No. 5, and stated that it was the stocking which appellant Pinkerton had over his head when he came into the tavern. He identified Exhibit No. 6 as being the coat he had on; Exhibit 7 as the gun appellant had in his left hand; No. 8 as the gloves he wore, and 9 as the ball of tape the appellants used in tying up the customers. These exhibits were then offered in evidence.

Thereafter counsel for appellants asked permission to ask preliminary questions outside the presence of the jury, for the purpose of making objections to the exhibits. The motion was denied. Counsel thereafter, in the presence of the jury, asked if State's Exhibit No. 6 was the coat obtained as the result of threats, which question was objected to by the state, and the objection was sustained. Counsel then objected to the admission of all the State's Exhibits on the ground that, if the defendants would be allowed to ask preliminary questions, it would become apparent that each of the exhibits was obtained as a result of the 'illegal threats.' The objection was overruled and the exhibits were admitted into evidence.

Later in the trial, the prosecuting attorney twice requested that appellant Pinkerton be required to put on the coat, identified as Exhibit 6, for the purpose of identifying the appellant. Objection by counsel for appellants was, in each instance, sustained.

We now consider appellants' contention that, by allowing witness Sullivan to answer the question 'What then happened?' in narrative form, constituted reversible error. However, this court has held that the manner in which a witness gives his testimony, whether in narrative form or by question and answer, is primarily within the sound discretion of the trial court. Brown v. State (1939), 216 Ind. 106, 23 N.E.2d 267; 58 Am.Jur. 309, § 555. In any event, there was no prejudicial error in this instance because, after the answer had been given, it was ordered stricken by the court and the jury was told to disregard it.

Appellant's next major contention is that it was error to permit testimony as to a statement made by appellant Pinkerton 'at a point of a gun,' relative to the whereabouts of the coat, and, further, that, under existing circumstances, it was error not to withdraw the case from the jury. The theory under which appellants assert this contention is not clear, but, presumably, appellants are contending that the evidence was inadmissible since it was obtained by an illegally coerced confession.

The admission of appellant Pinkerton's statement, regarding which the witness testified, was not irreparably prejudicial to appellants for several reasons, two of which are as follows. First, we cannot say that the statement was made as a result of 'illegal coercion,' not properly a part of the res gestae. In fact, the evidence permits the inference that there was no break in the events which involved the robbery of the witness' property at the point of a gun and his attempt to recover his property with the use of like force upon the person whom he believed to be, and later was proved to be, the robber. These events occurred at the scene of the...

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16 cases
  • Muehlman v. Keilman, 370S73
    • United States
    • Indiana Supreme Court
    • September 1, 1971
    ...90 U.S.App.D.C. 12, 193 F.2d 694, cert. den. 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326. As to narrative answers, see Temple v. State (1964), 245 Ind. 21, 195 N.E.2d 850. No injustice whatsoever arose from the manner in which the trial court dealt with these In their final allegation of erro......
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    • Indiana Supreme Court
    • March 6, 1968
    ...incompetent evidence to establish a fact which is proved by other uncontradicted, competent evidence is harmless. Temple et al. v. State (1964) 245 Ind. 21, 195 N.E.2d 850; Adams v. State (1946) 224 Ind. 472, 69 N.E.2d The claimed errors are without merit. We conclude that Appellant had a f......
  • Hall v. State
    • United States
    • Indiana Supreme Court
    • July 21, 1972
    ...that the hearsay evidence was erroneously received, the error is harmless in that it did not prejudice the appellant. Temple v. State (1964), 245 Ind. 21, 195 N.E.2d 850; I.C.1971, 35--1--47--9, being Burns § Thirdly, the appellant argues that the trial court erred in allowing the prosecuto......
  • Hedges v. State
    • United States
    • Indiana Supreme Court
    • December 27, 1982
    ...answer is within the sound discretion of the trial court. Muehlman v. Keilman, (1971) 257 Ind. 100, 272 N.E.2d 591; Temple v. State, (1964) 245 Ind. 21, 195 N.E.2d 850. Under the circumstances in the case at bar, we see no reversible error in this Appellant contends the trial court erred in......
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