Wallace v. State, No. 276S56

Docket NºNo. 276S56
Citation363 N.E.2d 956, 266 Ind. 344
Case DateJune 10, 1977
CourtSupreme Court of Indiana

Page 956

363 N.E.2d 956
266 Ind. 344
Herman Darrell WALLACE, Appellant,
v.
STATE of Indiana, Appellee.
No. 276S56.
Supreme Court of Indiana.
June 10, 1977.

Stephen H. Meyer, Schererville, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged by indictment of first-degree murder. Trial by jury resulted in a verdict of murder in the second-degree. Judgment was rendered sentencing appellant to the Indiana State Prison for not less than 15 nor more than 25 years.

The record discloses the following facts: On September 2, 1974, Patricia Aycock was married to the appellant, Herman Darrell Wallace. However, divorce proceedings had been [266 Ind. 345] filed. On the day in question Patricia Aycock had come to the trailer home of her estranged husband to retrieve some of her personal property. When she entered appellant was speaking to someone on the telephone and made remarks concerning the worth of his wife's life, whereupon she started to leave but was thrown against the wall by her husband.

The appellant then called his lawyer and then called the State Police, telling the police that he was going to kill his wife. At that time the appellant was pointing a gun at Patricia Aycock. Patricia Aycock's father, the decedent in this case, was informed of his daughter's plight in her husband's home and went to her aid. In the meantime, the appellant had laid the gun down and gone into the kitchen part of the trailer. Patricia Aycock had laid the gun on the floor. As Patricia Aycock's father came into the trailer, the appellant again picked up the gun and a confrontation occurred between the appellant and Patricia Aycock's father. The father was unarmed, but instructed his daughter to go into the other part of the trailer and retrieve her personal goods, whereupon the appellant shot his father-in-law. Patricia Aycock ran from the trailer to summon aid and testified she heard further shots after she left the trailer. She later saw her father lying beside the trailer steps, at which time he was dead.

Appellant first claims the trial court erred in overruling the ground in his motion to correct errors that during the deliberations of the jury, the jury foreman asked the bailiff if they could have copies of the instructions, to which the bailiff answered that they could not. It is appellant's position that it was error for the bailiff to

Page 957

undertake to answer such a question, that it should have been relayed to the trial judge and that the jury should have been returned to the court room in the presence of the parties for the answering of the question. The question was presented to the trial court by the affidavit of the foreman of the jury and by his testimony at the hearing on the motion to correct errors. The only reply [266 Ind. 346] given by the State of Indiana to this allegation is that a juror may not impeach his verdict.

The State's proposition of law is correct but not applicable to this particular case. The affidavit of the juror does not question the verdict, but goes to alleged misconduct by the bailiff. We therefore turn to the content of the affidavit and the testimony of the foreman of the jury. The foreman stated that shortly after entering the jury room and choosing him as foreman, it was observed that the list of instructions was quite long and complicated and that it would help if they could have them to read in the jury room. Other members of the jury had served previously in cases and informed the foreman that they would not be permitted to have the written instructions...

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5 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...harm; such communications usually involve ex parte delivery of legal opinions or instructions to the jury. Wallace v. State, (1977) Ind., 363 N.E.2d 956; Turner v. State, (1970) 254 Ind. 91, 257 N.E.2d 825; Deming v. State, (1956) 235 Ind. 282, 133 N.E.2d 51. In this case appellant has not ......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...86, a juror's affidavit may be considered where, as here, the alleged misconduct is that of a third person. See Wallace v. State (1977), 266 Ind. 344, 346, 363 N.E.2d 956, We have examined the jurors' affidavits carefully. One juror could not remember what the bailiff told the jury; the oth......
  • State v. Winters, No. 49A02-9604-PC-248
    • United States
    • Indiana Court of Appeals of Indiana
    • April 4, 1997
    ...conduct usually amounts to the bailiff answering a legal question or providing additional instructions to the jury. Wallace v. State, 266 Ind. 344, 346-47, 363 N.E.2d 956, 957 (1977); Harrison v. State, 575 N.E.2d 642, 649-50 (Ind.Ct.App.1991); Stader v. State, 453 N.E.2d 1032, 1035 (Ind.Ct......
  • Stader v. State, No. 2-1082A356
    • United States
    • Indiana Court of Appeals of Indiana
    • September 22, 1983
    ...applies in cases in which the bailiff gives an answer to a legal question amounting to an illegal instruction. Wallace v. State, (1977) 266 Ind. 344, 363 N.E.2d 956. In the Wallace case, the jury foreman asked if they could have written copies of the instructions, to which the bailiff repli......
  • Request a trial to view additional results
5 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...harm; such communications usually involve ex parte delivery of legal opinions or instructions to the jury. Wallace v. State, (1977) Ind., 363 N.E.2d 956; Turner v. State, (1970) 254 Ind. 91, 257 N.E.2d 825; Deming v. State, (1956) 235 Ind. 282, 133 N.E.2d 51. In this case appellant has not ......
  • Everroad v. State, No. 03A01-9005-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 1991
    ...86, a juror's affidavit may be considered where, as here, the alleged misconduct is that of a third person. See Wallace v. State (1977), 266 Ind. 344, 346, 363 N.E.2d 956, We have examined the jurors' affidavits carefully. One juror could not remember what the bailiff told the jury; the oth......
  • State v. Winters, No. 49A02-9604-PC-248
    • United States
    • Indiana Court of Appeals of Indiana
    • April 4, 1997
    ...conduct usually amounts to the bailiff answering a legal question or providing additional instructions to the jury. Wallace v. State, 266 Ind. 344, 346-47, 363 N.E.2d 956, 957 (1977); Harrison v. State, 575 N.E.2d 642, 649-50 (Ind.Ct.App.1991); Stader v. State, 453 N.E.2d 1032, 1035 (Ind.Ct......
  • Stader v. State, No. 2-1082A356
    • United States
    • Indiana Court of Appeals of Indiana
    • September 22, 1983
    ...applies in cases in which the bailiff gives an answer to a legal question amounting to an illegal instruction. Wallace v. State, (1977) 266 Ind. 344, 363 N.E.2d 956. In the Wallace case, the jury foreman asked if they could have written copies of the instructions, to which the bailiff repli......
  • Request a trial to view additional results

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