Watson v. State

• Decision Date: 06 February 1957
• Docket Number: No. 29256,29256
• Citation: 236 Ind. 329,140 N.E.2d 109
• Parties: Cecil Moss WATSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 109

140 N.E.2d 109

236 Ind. 329

Cecil Moss WATSON, Appellant, v. STATE of Indiana, Appellee.

No. 29256.

Supreme Court of Indiana.

Feb. 6, 1957.

Wilbur F. Dassel, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Bolling, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal by the appellant, Cecil Moss Matson, from a judgment convicting him of Armed Robbery under Acts 1929, ch. 55, § 1, p. 139, being § 10-4709, Burns' 1956 Replacement. Appellant claims errors which have been properly presented, (1) that the verdict is not sustained by sufficient evidence, and (2) the giving of the following instruction to the jury.

'One of the essential elements of the offense of armed robbery is that the person charged is over the age of sixteen years and this fact, if it be a fact, must be proven beyond a reasonable doubt by the State of Indiana the same as any other fact, and in the event you find this was not proven then you should find the defendant not guilty of armed robbery, but you are further instructed that you may observe the defendant and draw upon your observation of him in determining whether or not the defendant was a person over sixteen years of age at the time of the commission of the alleged offense.' (Our italics.)

Since they involve substantially the same questions we shall consider them together.

There was no direct testimony given at the trial concerning appellant's age. He did not take the witness stand. The statute under which appellant was convicted, it will be observed, unlike most definitions of a crime, sets out the age of the offender as an element therein.

Acts 1929, ch. 55, § 1, p. 139, being § 10-4709, Burns' 1956 Replacement reads as follows:

'Any person who being over sixteen years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, petit larceny or grand larceny while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, or while any other person present and aiding or assisting in committing or attempting to commit either of said crimes is armed with any of said weapons, shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten years nor more than twenty years, to be fixed by the court: Provided, That such court shall have the right to provide in the judgment that such term of imprisonment shall not run concurrently with any imprisonment that may be adjudged for either of the crimes first above enumerated but that such term of imprisonment shall be served beginning at the expiration of the imprisonment adjudged for either of said first named crimes.'

The verdict of the jury, and the judgment of the court is as follows:

'We, the Jury, find the defendant guilty of Robbery while armed with a dangerous or deadly weapon, as charged in the affidavit herein, and that he is 38 years of age.'

'It Is Therefore Considered And Adjudged by the Court that the defendant is guilty of Armed Robbery as charged herein and as found by the verdict of the jury herein.

'It is by the court therefore ordered that the defendant for the offense by him so committed that he be imprisoned at the Indiana State Prison for a period of not less than ten (10) years and that he pay and satisfy the costs herein taxed at $......'

The statutes concerning indeterminate sentences are not applicable in this case since the act defining the crime of Armed Robbery requires the court to pronounce a definite term to be served under its penalty provision. The statute on Armed Robbery is similar to that of Automobile Banditry in that respect. Egbert v. State, 1939, 215 Ind. 575, 21 N.E.2d 418; Palmer v. State, 1926, 198 Ind. 73, 152 N.E. 607; Saraceno v. State, 1931, 202 Ind. 663, 177 N.E. 436.

We have held in connection with the application of the indeterminate sentence statute, that failure to prove the age of the defendant found guilty was not grounds for reversal since the age was not an essential element of the crime charged. The age was important only for the purpose of determining at what place the sentence should be served, and the court may advise itself as to such facts, if necessary, from outside sources. The defendant in such a case may not object to a place of confinement unless he offered to prove his age. Boone v. State, 1903, 160 Ind. 678, 67 N.E. 518; Bradburn v. State, 1904, 162 Ind. 689, 71 N.E. 133; Beuchert v. State, 1905, 165 Ind. 523, 76 N.E. 111; Dennison v. State, 1926, 197 Ind. 663, 151 N.E. 722; Ewbanks' Indiana Criminal Law (Symmes Edition), § 452, p. 290.

The cases growing out of the indeterminate sentence law therefore cannot be relied upon for any guidance in the solution of the problem here presented.

The state urges upon us the case of Adams v. State, 1946, 224 Ind. 472, 69 N.E.2d 21 as authority that the age of the defendant need not be proved under the statute charging the criminal offense in this case. That case does not reveal whether or not evidence was presented at the trial from which the jury could have passed judgment on defendant's age. The question there was, whether or not the affidavit charging Armed Robbery was so defective by reason of the omission of the allegation as to age that it would not support a verdict of guilty when there was no motion filed to quash because of such defect. We do not feel that the case is applicable here. This decision is distinguished in a later case of Goldstine v. State, 1952, 230 Ind. 343, 103 N.E.2d 438, and this court held that the age of the defendant under the statute defining the crime of Armed Robbery, and fixing the age limit is an essential element of the criminal offense to be charged and proved.

The essence of the question before us then is, whether or not the jury had any evidence before it from which any inferences could be drawn as a basis for its finding and verdict that the defendant was '38 years of age.' It is conceded that the state introduced no evidence formally and directly as to the age of the appellant. This could have been done by a witness giving his opinion from observation of the appellant as to his age. Benson v. McFadden, 1875, 50 Ind. 431; 20 Am.Jur., Evidence, § 826, p. 695; 32 C.J.S., Evidence, § 493, p. 150.

The most that can be said for the state's evidence on this point is that one witness pointed out the appellant for identification, saying: 'The man sitting right there is the man that held me up.' A witness also referred to appellant as a 'man' he had seen in a tavern. The defendant did not testify or take the witness stand. May the jury observe the defendant as he sat in the court room and therefrom determine his age or conclude from the use of the term 'man' that he was more than sixteen years of age? If the defendant had taken the witness stand the jury would have been entitled to observe his demeanor and other characteriatics while testifying. In observing the witness the jury undoubtedly could have arrived at some conclusion as to his age. It could have considered his proper age in weighing his testimony as to creditability. 88 C.J.S., Trial, § 315, p. 833.

'The examination and cross-examination of a party before the jury are equivalent to exhibiting him before the jury and an offer of such person as an exhibit is properly refused.' 32 C.J.S., Evidence, § 609, p. 459.

'Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular, the outward physical appearance of an alleged minor may be considered in judging his age; a contrary rule would for such an inference be pedantically overcautious.' 2 Wigmore on Evidence (3rd Ed.), § 222, p. 5.

It is a general rule that when the age of a person is material to a case the person may be described and exhibited to a jury to aid them in making their determination on such question. Wharton's Criminal Evidence (12th Ed.), § 662, p. 575; 20 Am.Jur., Evidence, § 720, p. 603.

However, some early cases in this state take a contrary view, and are criticized by Wigmore. 2 Wigmore on Evidence (3rd Ed.), § 222, note 2, p. 6.

They hold that the appearance of a witness cannot be considered by a court or jury in determining the age of the party. In these cases the defendants were charged with minor offenses, such as being over the age of 14, and violating the Sabbath, selling intoxicating liquor to a minor, and permitting a minor to play pool. Stephenson v. State, 1867, 28 Ind. 272; Ihinger v. State, 1876, 53 Ind. 251; Robinius v. State, 1878, 63 Ind. 235; Bird v. State, 1885, 104 Ind. 384, 3 N.E. 827.

We are not persuaded or convinced at all by the reasoning in these cases. Indiana is clearly out of line in this respect with both the weight and overwhelming numerical authority. A defendant sitting in the court room may be pointed out and identified by various witnesses while testifying, and may be asked to stand for that purpose, if a description has been given for the jury's consideration. That is proper testimony coming from the witness stand from persons other than the defendant, and is evidence which the court and jury may properly consider. If such observation and identification may be made before trial, then there is no reason why it may not be done during the trial in the court room by a witness. Appelby v. State, 1943, 221 Ind. 544, 48 N.E.2d 646, 49 N.E.2d 533; Ross v. State, 1933, 204 Ind. 281, 182 N.E. 865; O'Brien v. State, 1890, 125 Ind. 38, 25 N.E. 137, 9 L.R.A. 323.

However, we find no such testimony presented to the jury of this character in this case. He was merely pointed out, and nothing more, for the purpose of identification. No physical characteristics from which a jury can draw any inferences of age...