Young v. State

• Decision Date: 05 December 1923
• Docket Number: No. 24358.,24358.
• Citation: 194 Ind. 345,141 N.E. 629
• Parties: YOUNG v. STATE.
• Court: Indiana Supreme Court

194 Ind. 345

141 N.E. 629

YOUNG

v.STATE.

No. 24358.^*

Supreme Court of Indiana.

Dec. 5, 1923.

Appeal from Criminal Court, Marion County; Harry O. Chamberlin, Special Judge.

Archie Young, Harry Lee, and John Neely were jointly convicted of keeping a gaming room, and Archie Young appeals. Affirmed.Holmes & McCallister and Eph. Inman, all of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

GAUSE, J.

This was a prosecution against the appellant, Archie Young, alias “Joker” Young, and Harry Lee and John Neely, in which the defendants were jointly charged in a grand jury indictment with unlawfully keeping a certain room at 522 Indiana avenue, in the city of Indianapolis, to be used and occupied for gaming. The defendants were jointly tried and convicted, each defendant being fined $500 and being sentenced to the Indiana state farm for a period of six months. The appellant, Archie Young, has appealed, and assigned as error the overruling of his motion to quash the indictment and the overruling of his motion for a new trial.

[1] The appellant has not discussed his assignment upon the ruling on the motion to quash, and this is deemed waived.

[2] He has only set out and discussed in his brief two alleged errors contained in his motion for a new trial. These both relate to the action of the court below in admitting certain evidence over the objection of the appellant.

The indictment charged, and the evidence tended to show, that all three of the defendants kept a room on the second floor of a building at 522 Indiana avenue, in the city of Indianapolis, which room was kept to be used and occupied for gaming.

One George Anderson, a lieutenant of police in said city, was a witness on behalf of said defendants. He testified that he was assigned to the district which included Indiana avenue during much of the time laid in the indictment; that during such times he had special officers under him; that Patrolmen Hostetter and Okey were the special officers under him; that he often visited the room in question, as well as other rooms on the second floor on said street, and that he directed his said officers under him to visit said upstairs rooms, which they did; that he never saw any gambling conducted there.

He was asked, on cross-examination, if he had ever had any conversation with either Patrolman Hostetter or Okey as to their duties on the avenue, and he answered that he did. He was asked if he did not tell them not to go upstairs, and he answered that he did not. He was asked, on cross-examination, if he had not told one John Hostetter, a member of the city police force, that “Bill Armitage said not to go upstairs on the avenue, but to investigate downstairs and let the upstairs alone.” To this question he answered, “No.”

The state upon rebuttal then called said Patrolman Hostetter, and he was asked if he had this conversation with Lieutenant Anderson, and, over appellant's objection, he answered, that he did. The appellant claims that this was error, because it was an effort to impeach a witness upon a collateral matter, and that the state was bound by the answer of the witness Anderson, which he made on cross-examination.

[3][4] While it is true that a party is generally bound by the answer of a witness on cross-examination to a question relating solely to a collateral matter, yet it is also true that where a witness has been asked if at another time he made statements which, if true, are contradictory of or render improbable his testimony on a material matter and he answers in the negative, he may be contradicted, and this is so although the evidence which it is sought to impeach was brought out on cross-examination. Seller v. Jenkins (1884) 97 Ind. 430;Gibbs v. State (1917) 186 Ind. 197, 115 N. E. 584.

[5] It is also true that a witness may be asked on cross-examination a question designedto show that he has any reason for favoring the party calling him, or opposing the opposite party, and his denial may be contradicted. This rule is stated by Jones Commentaries on Evidence (1914 Ed.) § 828, as follows:

“The rule is now well settled that questions, on cross-examination, which tend to impeach the impartiality of the witness are not irrelevant to the issue in the sense that the cross-examiner is concluded by the answer. It is elementary law, supported by all authority, that the state of mind of a witness as to his bias or prejudice, his interests involved, his hostility or friendship towards the parties are always proper matters for investigation, in order that truth may prevail and falsehood find its proper level.” Whitney v. State (1900) 154 Ind. 573, 57 N. E. 398;State v. McKinstry (1896) 100 Iowa, 82, 69 N. W. 267;State v. Collins (1885) 33 Kan. 77, 5 Pac. 368;Daniel v. State (1897) 103 Ga. 202, 29 S. E. 767; Gillett Indirect and Collateral Evidence, p. 139.

In the case of State v. McKinstry, supra, the rule was approved in the following language:

“It is not collateral, but relevant to the main issue, to inquire into the motives of a witness; and a party who examines him in regard to them is not...