Weer v. State

• Decision Date: 28 November 1941
• Docket Number: 27462.
• Citation: 37 N.E.2d 537,219 Ind. 217
• Parties: WEER et al. v. STATE.
• Court: Indiana Supreme Court

37 N.E.2d 537

219 Ind. 217

WEER et al. v. STATE.

No. 27462.

Supreme Court of Indiana

November 28, 1941

For former opinion, see 36 N.E.2d 787.

Appeal from St. Joseph Circuit Court; Aldo J Simpson, speciaL judge.

Harry Taylor, Al. W. Johannes, and William E. Voor (of Voor Jackson & Grant), all of South Bend (George Farage and Nicholas Cholis, both of South Bend, and Thomas E. Garvin Edward J. Fillenwarth, and Ralph B. Gregg, all of Indianapolis, of counsel), for appellants.

George N. Beamer, Atty. Gen., Glen L. Steckley and Warren W. Martin, Deputy Attys. Gen., and James E. Keating, Deputy Pros. Atty., for appellee.

SHAKE Chief Justice.

The appellants have filed a petition for rehearing, in which they assert that this court failed to adequately discharge the constitutional mandate resting upon it to give a statement in writing upon each question arising in the record. § 5, Article 7, Constitution of Indiana. A question arising in the record, within the meaning of this provision, must be one, 'the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the Court to comprehend it in all its bearings.' Willets v. Ridgway, 1857, 9 Ind. 367, 370.

In their petition for rehearing, the appellants urge that four of the alleged errors not previously considered ought to result in a reversal, and we have concluded to pass upon these propositions. They are: (1) Error on the part of the trial court in denying the separate motions of the appellant Weer for his discharge prior to the trial; (2) error in the admission of the testimony of an examiner for the Gross Income Tax Division relating to information which he obtained in his official capacity and conversations he had with the appellant Rose; (3) error arising on the trial by reason of the refusal of the court below to sustain the motion of the appellant Weer to withdraw the submission; and (4) error in the giving of the court's instruction No. 4. We shall consider these alleged errors in the order stated above.

In the principal opinion we discussed Weer's motion for discharge, but unfortunately referred to it as having been made by Rose. We welcome the opportunity to make the correction, and with that modification we are satisfied with the disposition of the claim that the trial court erred in denying Weer's motion to be discharged.

The alleged error with respect to the admission of the testimony of the examiner for the Gross Income Tax Division was predicated upon assignments in the motion for a new trial, of which the following is typical: '273. Error of law in admitting in evidence, over objections and exceptions, of testimony of one Kimball, an examiner for the Gross Income Tax Division of Indiana, of statements made to him by the defendant Rose, in connection with the accounts between Schuyler Rose, Inc., and the City of South Bend, and the fact that the books of the company did not reflect the same amounts as to deliveries as the amounts paid by said City to said corporation; for the reason that as conversations in the course of an income tax audit, same were privileged; it was a violation of the constitutional rights of defendants to permit such testimony; self-incriminatory; and that the statutes and constitution of Indiana, and of the United States, did not permit, such testimony except in connection with an investigation of alleged tax violations of a prosecution for same.'

In passing upon the sufficiency of another assignment of the same character, this court said in Brown v. State, 1939, 216 Ind. 106, 108, 23 N.E.2d 267, 268, 269:

'It will be noted, therefore, that the motion for a new trial does not disclose whether the questions complained of were propounded on behalf of the state or the defendant * * *; what objections, if any, were made to them at the time; or whether exceptions were reserved. Such indefinite assignments do not present anything for review on appeal.

'When error is predicated upon the admission or rejection of testimony, the motion for a new trial should set out the question and answer, if there was one, or the substance thereof. This was done in the case at bar, but that is not enough. The objection urged below should also be set forth together with the ruling of the court with respect thereto, and it should be made to appear that a timely exception was saved. This is...