Thompson v. State

• Decision Date: 13 December 1944
• Docket Number: 27987.
• Citation: 58 N.E.2d 112,223 Ind. 39
• Parties: THOMPSON v. STATE.
• Court: Indiana Supreme Court

58 N.E.2d 112

223 Ind. 39

THOMPSON v. STATE.

No. 27987.

Supreme Court of Indiana

December 13, 1944

Appeal from Delaware Circuit Court; Clarence G. Higi Judge.

Gene Williams, of Muncie, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, 1st Deputy Atty. Gen and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

O'MALLEY Chief, Justice.

The appellant was charged with the crime of robbery in Delaware County, Indiana, under § 10-4101, Burns' 1942 Replacement, § 2416-1, Baldwin's Supp. 1941.

Upon arraignment the appellant entered a plea of not guilty and thereupon filed notice of his intention to rely upon a defense of 'alibi'. The time and place of the offense were then fixed and a statement was filed by the appellant setting forth his whereabouts during the time so fixed.

At the trial the prosecuting witness testified as to the identity of the appellant. She likewise testified that she selected a picture from three photographs submitted to her by the police, and that the one so selected was a picture of the appellant. The state also produced a number of police officers who testified as to the submission of the pictures and what was said by the prosecuting witness in regard to them, and also testified that on the morning following the alleged crime, the prosecuting witness identified the appellant as the man who had robbed her. This testimony related what was alleged to have been said and to have taken place at the jail in the City of Muncie on the morning after the alleged crime. At the jail the appellant and other persons were on one side of a partition and on the other side were police officers and the prosecuting witness. The partition was so constructed that it contained a glass which enabled the prosecuting witness to see the appellant and other persons but the appellant was unable to see the prosecuting witness and the police officers. All of this evidence was introduced before the prosecuting witness testified and over the objection of the appellant.

It has long been the rule that where a witness is impeached by evidence of statements made out of court contradictory to those made in court on the witness stand, it is permissible on rebuttal to introduce evidence of statements made at or about the time of the impeaching statements and in harmony with the statements or testimony given on the witness stand. Coffin v. Anderson, 1837, 4 Blackf. 395. In that case, on page 398, Judge Blackford said: 'If the witness has not been impeached, by proof of his having previously made statements inconsistent with his testimony, there seems to us to be no sufficient reason for the introduction of the corroborating evidence. But it is otherwise, if the witness has been thus impeached; it appears then to be proper to give the party who called the witness an opportunity to support him, by proving that the witness had, on other occasions, stated the facts to be as he represents them in his testimony.'

The question in the above case involved the refusal of the trial court to permit corroborating evidence after the impeachment of the witness. To the same effect are the cases of Brookbank v. State ex rel. Murphy, 1876, 55 Ind 169, and Carter v. Carter et al., 1881, 79 Ind. 466.

In the case of Shoecraft v. State, 1893, 137 Ind. 433, 36 N.E. 1113, the court permitted the prosecuting witness and another to testify as to what the prosecuting witness said concerning a robbery. He claimed to have been robbed of his watch and money, and that the defendant and his two companions had done the robbing. The lower court admitted this on the theory that it was part of the res gestae, but this court held that it was not a part of the res gestae, and was improperly admitted.

The case of Tyrrel v. State, 1912, 177 Ind. 14, 97 N.E 14, was a prosecution for statutory rape of a child seven years of age. The prosecution was commenced before the mayor of Connersville and the testimony of the prosecuting witness was taken down by a stenographer. At the trial in the circuit court the appellant called the stenographer as a witness in order to impeach said prosecuting witness. The state, on cross-examination of the stenographer, was permitted, over the objection of the appellant, to read in evidence all of the testimony given at the preliminary hearing by the prosecuting witness. This was held to be error because the court did not restrict the admission of the prior statements to that which was in harmony with the testimony which had been contradicted. To the same effect is Hicks v. State, 1905, 165 Ind. 440, 75 N.E. 641. See People v. Seppi, 1917, 221 N.Y. 62, 116 N.E. 793; Murphy,...