Zimmerman v. State
| Decision Date | 16 March 1921 |
| Docket Number | 23,617 |
| Citation | 130 N.E. 235,190 Ind. 537 |
| Parties | Zimmerman v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied May 13, 1921.
From Howard Circuit Court; William C. Overton, Judge.
Prosecution by the State of Indiana against Charles H. Zimmerman. From a judgment of conviction, the defendant appeals.
Affirmed.
Overson & Manning and McConnell, Jenkines & Jenkines, for appellant.
Ele Stansbury and U. S. Lesh, Attorneys-General, Remster A Bingham and Mrs. Edward Franklin White, for the state.
OPINION
Appellant, a young man twenty years old, was convicted in the Howard Circuit Court of grand larceny, as defined by § 377, Acts 1905 p. 584, § 2269 Burns 1914. The subject of the alleged larceny was an automobile, the property of the Haynes Automobile Company. The overruling of appellant's motion for a new trial is the only error relied on for a reversal of the judgment.
Appellant, in support of his motion, insists that the court erred in admitting certain evidence over his objection; in giving certain instructions upon its own motion; in giving certain instructions requested by the state; in refusing to give certain instructions requested by him; and insufficient evidence to sustain the verdict.
At a former trial of appellant on this same charge, a certain witness testified on behalf of the state and his testimony was reported by the official court reporter. A subpoena for this witness was issued to the county of his residence in this state, and by the sheriff thereof returned not found. It was then made to appear by the father of the witness, and by his former associates, that, since the former trial, the witness had enlisted in the army and had been sent to a foreign country (France), where he was supposed to be at the time of the present trial.
Over the objection of appellant on the ground of insufficient preliminary proof, the court permitted the reporter to read to the jury from her shorthand notes the testimony of the witness given at the former trial. This character of evidence is now generally conceded to be admissible in criminal as well as in civil cases, upon a showing of diligence and inability to produce the witness in court. True, some questions were asked in making the preliminary proof, which the hearsay rule ordinarily would exclude, but as this proof as a whole had to do with determining the admissibility of the proposed evidence, we are convinced that no error thereby intervened harmful to appellant, and that the evidence of the absent witness was rightly admitted. Iowa Life Ins. Co. v. Haughton (1909), 46 Ind.App. 467, 480, 87 N.E. 702; 22 C. J. 440, § 530.
As a part of the state's case in chief, and over the objection of appellant, and over his motion to strike out, the court permitted the testimony of two witnesses to go to the jury relative to appellant's statements, doings and actions, four months prior to the theft in question, with reference to another automobile, the property of the Haynes Automobile Company. It appears from the testimony of one of these witnesses that, in the spring of 1917, he accompanied appellant from Logansport to Kokomo and to within two city blocks of the Haynes automobile factory, where, at the suggestion of appellant, he waited until appellant should return from the employment office of the Haynes company. In about an hour thereafter appellant returned, driving a new Haynes automobile, which they drove to Logansport. The announced purpose of appellant in seeing the Haynes company was to obtain a settlement for an alleged injury which he claimed to have received while working there. To this witness, a boy seventeen years old, and to this boy's step-father, the other witness, appellant stated that the Haynes company had given him this automobile in settlement of his claim against it. This automobile, the first or second day after it reached Logansport, was returned to the Haynes company by the step-father. Appellant sought to exclude this evidence on the ground that it tended to prove a distinct and independent offense from that for which he was on trial, and therefore was inadmissible.
Prior to the introduction of the evidence to which objection was made, another witness, John Moon, a young man twenty years old, testified that about three weeks or a month prior to the time of the theft as charged in the affidavit, he and appellant went from Logansport to Kokomo for the purpose of getting an automobile which appellant said he could get at the Haynes factory. When within two or three blocks of the factory "he left me and went toward the factory." In about an hour he returned saying "chances weren't very good." A little later he left him again and went back to the factory and in a short time returned saying "It isn't no good day, we will have to go back," and they then returned to Logansport. Witness further testified that on the morning of August 12 appellant came to him at the Murdock Hotel in Logansport, where he was working, and said that "he was going to get a car." In the evening of that day appellant came to witness at the hotel and said "he had the car" and told him it was "by the West Side Engine House," and that "the car wouldn't run it was broke down, and that it would have to be pulled in, that the police were watching it, he didn't have no license number on it and it was in danger." It was then on Pearl street about two blocks from the hotel. It further appears in evidence that the Haynes company was constructing automobiles faster than it could get shipping facilities from the railroad company, and was storing cars on a vacant lot near its factory. Appellant took employment with this company on the last day of January, 1917, and continued in its service for seventeen days, during a part of which time he was engaged in driving cars across the country to Peru where they were loaded on freight cars.
The general rule, and the one to which we adhere, is, that evidence of the commission of entirely separate and distinct offenses cannot be received for the purpose of showing a disposition to commit the crime charged, or that the accused probably committed it. Underhill v. State (1916), 185 Ind. 587, 114 N.E. 88; 1 Elliott, Evidence § 175. But to this rule, from necessity to aid in the detection and punishment of crime, there are many exceptions as firmly fixed as the rule itself. To state the exceptions generally it can be said that when the act constituting the crime has been established, then any evidence tending to show motive, intent or guilty knowledge, if in issue, or evidence which directly or as a natural sequence tends to show the defendant guilty of the crime charged is competent, although it also tends to show him guilty of another and distinct offense. Frazier v. State (1893), 135 Ind. 38, 34 N.E. 817; Clevenger v. State (1919), 188 Ind. 592, 125 N.E. 41; Underhill v. State, supra; People v. Thau (1916), 219 N.Y. 39, 113 N.E. 556, 3 A. L. R. 1537; Thompson v. United States (1906), 144 F. 14, 16, 75 C. C. A. 172, 7 Ann. Cas. 62; State v. O'Donnell (1900), 36 Ore. 222, 61 P. 892.
In the case of People v. Molineux (1901), 168 N.Y. 264, 61 N.E. 286, 62 L. R. A. 193, it was said that evidence of other crimes should be admitted when "It tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial." But the court, by instructions to the jury, should, as was done in this case, expressly and clearly limit such evidence to the particular phase of the case to which it is relevant, and the purpose for which the jury may consider it.
From the evidence in the instant case, we are impressed with the view that appellant is not protected by the general rule which would require us to hold the particular testimony in question irrelevant, for the reason, that evidence in many respects bears directly upon the question of his guilt, in that it tends strongly to corroborate the testimony of the witness, John Moon, and to show the plan and method pursued by appellant in obtaining possession of the car in question, as well as guilty knowledge, and serves to aid the jury in determining who actually committed the offense; for if the jury were limited to the evidence beginning twenty-four hours after the car in question reached Logansport, we...
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