White v. State, 29179
| Decision Date | 06 April 1955 |
| Docket Number | No. 29179,29179 |
| Parties | Clifford O. WHITE, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Hunter J. Von Leer, Terre Haute, J. L. Sullivan, Paris, Ill., for appellant.
Edwin K. Steers, Atty. Gen., Owen S. Boling, Richard M. Givan, Deputies Atty. Gen., for appellee.
This is a prosecution for rape. Trial was by jury which returned a verdict of guilty.
The record in this case is replete with irregularities on the part of the prosecution. Some of these pertained to the admission of evidence regarding crimes currently having been committed in the neighborhood of the offense charged, but which were not involved in this action. There was a statement of dubious propriety in the State's opening statement relating to the appellant taking the witness stand, but most offensive were statements of the prosecutor in his final argument implying that appellant had committed other crimes (enumerating them), and that 'We have an affidavit on file against this man for robbery and it depends on the outcome of this case what we will do with that.'
The question is presented as to whether these irregularities were properly reserved and whether some of them may have been invited. Also, we have considered the possibility that such irregularities, although not made the subject of timely objection, may have presented a situation so prejudicial to the appellant that, on motion properly presented, it became the duty of the court to withdraw the case from the jury and grant a new trial. However, we have concluded that the judgment must be reversed and a new trial granted because of an erroneous instruction. Therefore, our opinion will be based upon that issue. We nevertheless express our strong disapproval of the abuses in which the prosecutor indulged in his apparent zeal to obtain a conviction.
The court's preliminary instruction No. 6, which was read both prior to the admission of evidence and again at the conclusion of the trial, is as follows:
(Our italics.)
Appellant's objection is directed to that part of the instruction which tells the jury that 'reasonable doubt' must spring from the evidence on some material fact or facts and not from mere subsidiary evidence. It is the appellant's contention first that a 'reasonable doubt' may spring from any evidence (primary or subsidiary) that is properly admitted by the court into the record. Also, it is appellant's contention that the term 'subsidiary evidence' is ambiguous and that the court should not require the jury to distinguish between what is subsidiary evidence and what is not. Substantially the same instruction first appeared in the case of Hauk v. State, 1897, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465, in which case the court approved its usage. However, when the instruction subsequently appeared in the case of Sharp. v. State, 1919, 188 Ind. 276, 280, 281, 123 N.E. 161, 162, this court held that use of the instruction was reversible error. In the latter case this court discussed the instruction as follows:
...
To continue reading
Request your trial
-
Burris v. State
...considering subsidiary evidence. He claims that such instructions as this have been condemned by this Court and cites White v. State, (1955) 234 Ind. 209, 125 N.E.2d 705. Instruction 32 reads as It is necessary that every material element of the crime charged against the accused should be p......
-
Stanger v. State
...of a confession between judge and jury. In Hauk v. State (1897), 148 Ind. 238, 46 N.E. 127, overruled on other grounds, 234 Ind. 209, 125 N.E.2d 705, the appellant sought to have the court submit the competency of his written confession to the jury upon the ground that it had been made by h......
-
Abel v. State, 1--175A15
...by our Supreme Court in Ringham v. State (1974), Ind., 308 N.E.2d 863, 867, where the court said: 'Appellant cites White v. State (1955), 234 Ind. 209, 125 N.E.2d 705, which holds that the use of the term 'subsidiary evidence' is ambiguous and could only serve to confuse the jury in the man......
-
Hunt v. State
...directly related to the essential element but also evidence of subsidiary matters. [R. 77] Hunt argues, based upon White v. State (1955), 234 Ind. 209, 125 N.E.2d 705, that the substance of the tendered instruction was not covered by any other instructions and was critical to balance the co......