Vaughn v. State
| Decision Date | 20 February 1939 |
| Docket Number | 27068. |
| Citation | 19 N.E.2d 239,215 Ind. 142 |
| Parties | VAUGHN v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Morgan Circuit Curt; Omar O. Harrow, Judge.
Clarence R. Martin, of Indianapolis, and Chas. H. Foley, of Martinsville, for appellant.
Omer Stokes Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for the State.
The appellant was convicted of a robbery of raw furs and escape by automobile. Acts 1929, ch. 54, § 3, p. 136, section 10-4710, Burns' Ann.St.1933, section 2573, Baldwin's Ind.St.1934.
He assigns as error the overruling of his motion for a new trial.
A witness pointed out the defendant, who was sitting in the court room, as one of the persons who participated in the robbery. The State then exhibited to the witness a piece of cardboard, measuring about 8X9 inches, upon which was a printed form on which was typed a prison record of the defendant, and on the back of which were finger and thumb prints. On this card was pasted a photographic print 3X4 1/2 inches, showing a front and profile photograph of the defendant, with a number across the breast of the front-view photograph. A brown paper was fastened around the card so as to entirely envelop it, except for an aperture through which the photographs showed. A strip of white paper was pasted over the number appearing upon the breast in the front-view photograph. The witness was asked if he could tell the jury 'what that is,' to which he answered 'yes.' He was then asked: 'Are you able to tell what that is from what you saw and observed on the nignt of December 27 1936?' (The date of the alleged crime.) He answered 'Yes.' 'You may tell the jury what that is.' He answered: 'Picture of Robert Vaughn.' The picture and card covered with the brown paper was then admitted in evidence and was passed to the jury for examination. Appellant calls attention to the fact that the paper was not fastened around the aperture through which the photograph was shown, and that by slightly lifting the paper at the edge it is disclosed that the card has printed on it in capital letters 'Indiana State Bureau of Criminal Identification and Investigation,' and that at the right of the picture is a description of the person photographed and a crime record.
The witness had already positively identified the defendant. In his testimony concerning the photographs he did no more than identify the photographs. It is true he was asked whether he was able to tell from what he saw on the night of the crime that the picture was a photograph of the defendant, but necessarily he could only identify the defendant himself because of what he observed on the night of the crime, and, having identified the defendant positively nothing was added to the identification by the identification of a photograph of the defendant. There is no contention that the defendant had changed in appearance between the date of the crime charged and the date of trial, nor is it contended that it was not obvious, without the testimony of any person that the photograph was the picture of the defendant. There may be cases where a defendant's appearance has changed, in which a witness may be permitted to identify a photograph as a basis for other witnesses testifying that the defendant, though changed in appearance, is the identical person represented by the photograph; and there may be other cases in which a photograph may have some substantial probative force, but even in such a case the court should require the removal of anything of a prejudicial character from the photograph. Pictures of criminals showing a front and profile view, with a number displayed on the breast, are common and familiar. If the evidence had been offered for the good-faith purpose of showing that the witness could identify a photograph of the defendant, these pictures might have been cut apart and that portion where the number is displayed cut away. But it is obvious that thus presented they would have no more relevancy or probative force than a kodak picture taken in the court room or in the defendant's home. It may well be doubted whether the jurors remained in ignorance of the fact that the photographs and card had to do with some criminal record of the defendant. It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge. If the photographs had any substantial probative force and furnished any further evidence of the identity of the person who committed the crime than was furnished by the testimony of the witness who identified him, and it was impossible to separate the photographs from the prejudicial matter, a different question would be presented. Since proof of another crime improperly admitted is always treated as prejudicial error, and, since it cannot be said that this exhibit and the manner in which it was presented was not sufficient to cause a juror of average intelligence to at least strongly suspect that the...
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