*1 report Bradburn, respondent, did said The Arthur L. charged $5,000.00 Tax He his Income Return. Federal filing income tax return a fraudulent in Federal Court failing sum, plea guilty report said entered charge against him in Court. The commissioner Federal Bradburn, respondent, L. Arthur be recommended attorneys practice suspended from role licensed law period years. of Indiana three in the State Exceptions Commissioner’s respondent The has filed However, exceptions Finding an examination of Fact. respondent any not raise by the does which we filed transcript worthy of of the deem further comment. The evi- findings amply of the commissioner. dence itself sustains respondent transcript testimony taken includes The given testimony and also commissioner this cause before the prior proceedings. respondent Federal Court testimony in material respondent’s essence admits most of the fact the commissioner. found report and recommendation of the commissioner is hereby things respondent approved, and in all therefore suspended practice of law the State of from the further period of three from this for a date. Indiana Note.—Reported 2d N. E. 885. v. Indiana.
Binder 30,547. 21, 1966.] Filed December [No. *2 Stephan, Harry Taylor,
Robert and S. of Bend, L. South appellants. for Dillon, General, Attorney Wedding,
John David J. and S. Attorney Deputy appellee. for General, charged C. J.The defendant was with the Arterburn, sodomy 1905, 169, 584, 473, p. being crime of under ch. Acts § (1956 Repl.), following Burns’ Anno. 10-4221 Ind. Stat. and § jury accordingly, trial was convicted sentenced from judgment defendant which the herein below appeals. only specification
There is one in the motion new presented by appellant’s appeal, namely, trial brief on the overruling psychiatric of motion examination prosecuting witness, Lynne Eby, of the State’s Susanna 15 age. years This has come before this Court previously (1957), and has been settled Wedmore v. State 237 143 2d Ind. N. 649. stated that there is E. We requiring psychiatric no statute in Indiana court order examination of witness said: prosecuting being “The witness in case 17 presumption took the witness stand clothed with competency establishing contrary and the burden appellant—defendant.” was on the
In psychiatric case motion for examination was beginning upon made at the trial. It was an attack competency of the witness. us, In the before no such case motion was until made ques conclusion of the case and after the State’s 32 upon fully cross-examination.
tion testified objec timely filed and an Appellant’s motion was competency of a be made witness must tion as to the objecting party permitted testify. The before the witness is testimony and if may the evidence is hear the not wait and competency object unfavorable, of the witness. then 15; 315, 185 2d Morgan (1962), Ind. N. E. 243 v. State Ind. N. 2d 649. (1957), v. E. Wedmore right to a examination On the issue crimes, involving recently have more reaffirmed sex we cases supra, by position case, in Wedmore taken our (1964), 245 opinion Lamar v. State Ind. 2d N. E. 98. above, judgment authority of the cited cases
On affirmed. the trial court is Jackson,
Myers Rakestraw, JJ., J., concur. dissents opinion.
Dissent majority opinion. Jackson, J. to the I dissent charged by crime indictment with the Appellant was p. 1905, 169, 473, 584, 10-4221, ch. sodomy under Acts § § Replacement. Burns’ omitting parts, reads as follows: indictment, formal Joseph Circuit Court of the St. Grand Jurors “The County Joseph, 1963, May Term, the of St. and for
the present: Indiana, do upon oath their State of January day 1963, at and the 22nd on or about “That Indiana, Joseph, one County State of JOE St. unlawfully, feloniously commit and there did then BINDER against crime one nature with and detestable the abominable mankind female fifteen cases beast, Lynne Eby, to-wit: with Susanna being, being there human then and (15) years, contrary to the form of such Statute provided against peace dignity made and Indiana.” of the State of
Appellant sufficiency tested of the indictment motion quash, being, therefore reasons “1. That it does not sufficient facts constitute state public offense. alleged “2. That it does not the facts as to state the said public certainty.” offense sufficient Quash 10, appellant’s 1963, June Motion to was overruled. Thereafter, September 10, 1963, appellant appeared per- by counsel, arraignment son and plea waived and entered a guilty” September 16, “not 1963, indictment. On appellant requested change and obtained a of venue from the county, being changed Joseph County venue from St. County. Marshall began 14,
Trial jury on November in the Marshall Circuit Court. At conclusion of State’s evidence on appellant'filed require November his motion to prosecuting Lynne witness, Eby, Susanna to submit to a psychiatric examination, motion, omitting parts such formal signatures, reads as follows: Joseph defendant, Binder, by “Comes at- now his
torneys, witness, require complaining and moves court Lynn Eby, Susanne submit purpose determining following: examination for the “(1) verify stability; To her emotional (2) capacity To establish for truthfulness.” The court promptly overruled motion.
Thereupon evidence, defendant introduced the defendant taking jury the stand. After deliberation the returned following verdict: *4 “We, Jury, Binder, guilty; defendant, Joseph find the provided imprisoned by and further that he find should be as law, years.” and is 50 his 18, 1963, following proceedings On December were follows; reading in cause, said as Eugene by Chipman, of Indiana N. now State “Comes
Prosecuting Attorney for the Marshall Circuit Court and Prosecuting Attorney Joseph Roemer, Court. Comes for the St. Thomas also defendant in court in Circuit person counsel. having Jury heretofore returned the verdict of “The cause, and the Guilty entitled Probation the above in Officer (em- pre-sentence report investigation, having filed having defendant, phasis supplied) been asked and the in legal any open why judgment the verdict if he cause reason court show against pronounced upon not him should be being legal Jury, no cause or reason of the shown, AND ADJUDGED the Court “IT NOW ORDERED IS Binder, Joseph Binder, as that known Joe sometimes charged defendant, guilty Sodomy, is as the in- said dictment age, years ; that the defendant is the court finds committed, so the defendant for offense is Indiana Prison for a term of now sentenced years, two nor more than fourteen than less Indiana, his to the State of in the sum make fine he $1000.00, and the this action. costs charged execution sentence. “Sheriff “Argument Trial on for New Submitted. Motion motion overruled.” Trial is now New (6) for New Trial” contained Appellant’s “Motion six grounds, follows: Quash overruling Motion to his trial Court erred “1. The allegations insufficiency of the to constitute a on
based public offense. overruling trial erred in his Motion “2. Court alleged uncertainity Quash (sic) based the indictment allegations. overruling Motion erred “3. trial Court Lynn appoint psychiatrist to examine Susanne Court testify findings (sic) Eby, at the trial as to his and to from examination. such sending jury erred trial Court back “4. The ap- and stated substance it deliberation further verdicts; finding jury had returned two parent one charge, finding misdemeanor guilty of a the other him charge. felony guilty of a
him *5 “5. That the verdict is not sustained sufficient evi- dence. contrary “6. That to law.” verdict “Assignment Appellant’s of Errors” reads as follows: Appellant “Comes now the shows Court that the trial committed Court manifest error the trial following respects, this cause in the to-wit: overruling Quash “1. In In Motion the indictment. overruling “2. the Motion for trial.” new only produced by the State of Indiana was Lynne Eby. only Susanna evidence adduced the State witness, consequently came from this is the evidence most favorable to the State and is set out rather more de- customary. tail than otherwise would be (15) years age The witness testified that she was fifteen appellant she met morning when about 4:30 o’clock on the meeting January place 1963. That took outside the Lunch Restaurant part Cadillac where she worked as a time That appellant by waitress. she was introduced to friend, appellant Red Felix. She told she was nineteen they go when were he introduced and her asked home with him, got appellant’s she did. which She into car with the restaurant, Felix, owner of the Mr. and Mr. Binder. The owner home, the restaurant was out let at his and the others went appellant’s Lincolnway Bend, home inWest South arriv- ing January 20, o’clock about 5:00 a.m. on 1963. appellant’s arrival
After at home he if asked her she knew girl” was, replied “yes,” a “call what she and he then asked if him “yes.” she would work for as one and she said She man, then asked if she would do a “trick” with another present appellant’s home, at who and who was called Stanley. meaning The word “trick” in the words of the wit- slang ness, expression ais would have intercourse “[i]t we pay.” (sexual) “yes,” with them for Her answer was Stanley into bedroom in went home they Stanley had paid sexual intercourse for where which gave $25.00, keeping sum she (cid:127)her $12.50 which completing herself. the trick the remainder After with Stan- place ley to a the witness went back where she been Bend, staying on Peter South St. Street Indiana. Lincolnway appellant’s house at 1043 West She returned January night, I again night of 21st and turned on the “[t]hat night stayed I Binder there that tricks for Mr. ... of his two night.” day and I was still there next the next all *6 morning January 23rd, appellant and early when she In they a appellant’s kitchen alone had conversation were in Binder testified as “Mr. was the witness follows: about which girls things telling In of the that call do.” me some “ replied question by e told me response she to [h] job explained thing me a French and to called there was was, himself and he called a teacher would teach what it thing.” The witness then testified to do this me to how appellant that an herself and would act commission crime classification commission fall within the sodomy. stay that' continued at further testified she during approximately a week and a half appellant’s home for slept appellant’s sexual rela- she in bed time which paid. told men for she That all other which was tions with stayed home three at Binder’s about for and worked she earnings during her weeks, she divided with that time during time had unnatural relations with That she him. on 1963. That on occasion June did the first as she Binder during period at three she was week for about week in North St. Peter Street South appellant’s lived at she 313% appellant’s Indiana, home she re- Bend, she left when Peter on St. Street. to the address turned testified that she was the witness On direct examination and had been of the Indiana Girls’ School resident then a parents had about her been divorced months. That about nine in years, had remarried and lived South her mother seven remarried, at that the time she :Bend,. had not her father girls’ great sent to school she lived with a aunt and placed in uncle. That had been she Christian Women’s Anderson, Indiana, stayed Union Home at Welfare she where July 1962; placed Family until she was in the and Childrens’ Mishawaka, Indiana, away she Center after had run placed back came Bend. In October South she week, Detention the Juvenile Home for about a and then sent great back her aunt and South uncle Bend where she January 6, 1963, until away lived on which date ran she from them.
On cross-examination the witness testified she first started old, have sexual intercourse when she was 11% living at the time she met she was at the St. Peters Roger Patterson, negro, Street address one who lived apartment there, in an on she lived with him two oc- during each, they casions about one week the time together they every night. lived had sexual intercourse stayed witness further testified at that before she slept home she women’s washroom at the South Bend Station Bus and in cars that came the Bus Station. In response questions about scars testified arms that she had broken which windows at the Girls’ School caused *7 always the scars. also testified She that she was and been highly nervous, that she had treatment for received medical that condition before and after her commitment the Girls’ treated; being that School and was at time has two sisters she step-brother, patient the one had been a in sister Hospital Beatty Norman an in Westville and the brother was Reformatory. inmate at Indiana the stand, put
The defense three witnesses on the Robert Hen- derson, John Felix and Looten. Henderson Alberta Robert acquainted prosecuting testified that he was with witness veracity reputation with her for truth and and also reputation moral That both were for character. bad. present that John Felix testified he outside Cadillac prosecuting appel- introduced Restaurant and witness January appellant’s home on accompanied them lant and that Felix testified testified. 19.63, prosecuting as the night not that and did (appellant’s) drink at he not Joe’s did he Stanley He also testified named there. that man meet a telling Eby’s reputation Lynne Susanna knew what reputation moral character that he knew her truth was and very bad. that both were Eby’s that testimony to the effect Miss Miss Looten’s her, she familiar, may and that have seen that face was may have heard her. on behalf the evidence introduced
That concluded and the State also rested without who then rested defendant attempting rebutting evidence of the to rebut the defense. argument points Attorney in his out that The General assigned error, his first determination waived Quash by overruling indictment, Motion argue by implica- failing Appellant, in the same his brief. least, agrees that by his failure to discuss issue tion at assignment Therefore, give con- reply I no his brief. will arriving sideration at a determination herein. “[appel- Attorney in his General brief comments regarded of the evidence is as narrative statement
lant’s sufficiency Appellant not surplusage, does contest as statement, together appeal.” That evidence brief, specification page appellee’s clear three of I appellee determinate as have us believe. cut and would by appellant is, “[sjhould prose- posed cuting being minor, witness, case, in a re- a female sex be quired examination, by to a submit where testimony emo- witness’ own there is evidence of mental or part witness, instability on tional such there has asking an a motion made the defendant been such ordered the Court?” examination be question actually the court the case I think the before *8 greater important more than the form at is far bar propounded by appellant. case at In the bar testimony solely uncorroborated a convicted on the prosecuting witness, by testimony minor as who her shown by began concupiscence herein a career at the record years. tender That unabated career continued 11% prior until at nine date of least trial. This months highly witness has testified that has a nervous condition long that has existed as as she can remember. She has been by private physicians, physicians treated as and a as well psychologist receiving at the Girls’ Such School. (“It liquid treatment at time of a trial. medicine is during stay I usually drams.”) fifty receive her That at against her; the Girls’ she received six marks she ran School away great home; away from her ran aunt’s from the Anderson, Christian Union Home at Indi- Women’s Welfare ana; she, by testimony, slept her own in the women’s wash- room at the Bend Station and for a or more South Bus week slept by with men in came to Bus That cars that Station. testimony amoral; her own she is one who immoral or is person a reputation who bears a for truth that is bad and “very reputation morality. who bears a bad” On record, delineated, the state of the we are above general asked to violate the rule conviction testimony accomplice uncorroborated an cannot be affirmed. accomplice emotionally unstable, To do so when is de- generate, vicious, subject people, the influence of other or subject police peculiarly pressure by officials, or other might or position testimony inis where his be slanted interest, places posi- for his or her own self a defendant in tion peculiarly blackmail, oppres- where he vulnerable disgrace sion, persecu- prison open is an invitation to legal tion prosecution rather commission than criminal offense. amply “. psychiatrists . . Modern have studied be- girls coming young havior of errant and women before complexes psychic
the courts in all Their are sorts of cases. multifarious, partly defects, partly inherent distorted *9 derangements instincts, partly by bad diseased or abnormal physiological by temporary partly social environment by complexes form taken these emotional conditions. One by contriving charges men. is that of false of sexual offenses occasionally female . The facts are that there exist . sexuality, types just are perverted as there of excessive or types; accompanied by a such male often these are its plausibility taken at testimonial face value. history the which should not be Only inquiry mental an into the social and credibility. inquiry degree will reveal the of This ought extent, permit of Evidence law to to the fullest rejecting the hindrance of rules that framed without were understanding Wigmore Evidence, an of these on facts.” III, 924a, pp. 459, Vol. 460. § credibility am I aware that of a is a group laymen the trier of cannot make facts. But a of proper as credibility determination of the of a witness such psychiatric we have in this case without the assistance testimony. stability and Medical evidence to emotional if truthfulness of of inestimable value the witness would be Evidence, supra, absolutely Wigmore necessary. As put has it: charge go judge “No should ever let a sex-offense
jury mental complainant’s history and unless the social female makeup have been examined and testified qualified physician. sinister “It is time that the Courts awakened possibilities without careful injustice believing lurk in such witness psychiatric scrutiny. . .” . argument appellee herein in the section its brief argument doing specious made a rather and in so has failed in the make the law some distinctions between the facts applicable in the case cited and the law cases facts argument appellee’s is set For that reason at bar. most out verbatim as follows: solely “Specification Appellant’s argument is addressed I. alleged overruling by trial court erroneous Appellant’s psychiatric examination of motion for State’s
witness,
Lynn Eby.
Susanna
41
entirely
“Appellant’s
upon
authority is
the case of
based
(1953),
Burton
E.
v. State
Ind.
111 N.
2d 892.
“Appellee
point
case, supra,
the Burton
would
out that
incorporated acceptance
Wigmore’s views,
with its
Dean
longer
Indiana,
no
expressly
it
the law
as was
over-
(1957),
ruled in
2d 649.
v.
Wedmore
State
N.
Ind.
E.
“Furthermore,
just
ago
(3)
this Court
three
months
(1964),
98, 99,
Lamar
v. 245 Ind.
195 N. E. 2d
100, emphatically
position
reaffirmed its
in Wedmore v.
State,
stating:
supra, by
“ ‘Secondly, appellant
error
fact
asserts as
Roger
trial
petition
require
court denied his
Sitcler
qualified
submit
to a
examination
three
*10
physicians,
again
during
which asserted error was
raised
objection
course of the trial
in the form of an
to the ad-
testimony
Roger
mission of the
of the witness
In
Sitcler.
support
petition,
of
appellant
(1)
this
asserted:
That
prosecuting
years
age
minor,
witness
15
of
was
at the
trial;
(2)
time of the
that on numerous occasions he had
changed
story
regard
offense,
(3)
to the
he was the sole witness
offense,
who
to the
testified
charged.
Thus,
objection,
petition,
from
argument,
State
relying
it
upon
is obvious that he is
Burton v.
(1953),
246,
232
892,
Ind.
111
E.N.
2d
with its
authority
right
attendant criteria
require
as his
for his
psychiatric
prosecuting
examination witness.
“ ‘However,
longer
case, supra,
authority
Burton
is no
proposition
law,
on this
upon
of
appellant,
relied
since
expressly
it was
Ind.
(1957),
overruled in Wedmore v. State
237
221-222,
212,
223-224,
649,
143
2d
N. E.
653-654.
In that case this court said:
“ ‘
making provision
“There
no
statute in Indiana
psychiatric
prosecuting
for a
of
examination
witness in
any
State, 1924,
282, 294,
case. Cf. Chesterfield v.
194 Ind.
632;
1926,
State,
E.
419,
141 N.
Cosilito
424,
v.
197 Ind.
42 Holmes v. jury facts].
tion for [trier 1912, Tyrrel State, Ind. 1882, 145, 147; 177 State, 88 v. Ind. 1936, 49, 199 14; State, 210 Ind. Jacoby 14, N. E. E. v. 97 N. 563; 290, 66 State, 224 Thompson Ind. v. 2d N. E. 597. “ ‘ being prosecuting case witness “The presumption age, took stand clothed with the witness contrary establishing competency, of was and the burden Witnesses, Jur., upon defendant-appellant. Am. emphasis)’” p. (Our 144. § 210, Appellant’s noted motion “It should be further psychiatric had ness. until the examination not advanced Court already opportunity to hear and the wit- had an view by overruling motion, (Tr., pp. 77) Thus, 76 and necessarily stated it was satisfied as
the Court competency of the witness. “Appellee point Appellant’s out that motion would also objected Eby’s timely If filed. Miss proper objection competency, made the he should have By failing to a season before the witness testified. make objection, Eby took the stand clothed able with the Miss Hence, presumption Appellant competency. concerning any question competency. waived Morgan See: (1962), 15; 185 N. E. 2d v. 243 Ind. (1957), Ind. 143 N. 649. Wedmore v. State E. 2d argument Appellee Appellant’s conclusion, “In contends since, statutory authority (1) there is no is without merit any case; (2) Appellant’s examinations was made after the Court had heard and viewed motion witness; Appellant (3) timely objec- failed to make a competency.” tion to the witness’s *11 holding reference to this With Court’s Wedmore v. State 212, (1957), 649, 143 2d there 237 Ind. N. E. the defendant requesting prosecuting file a did not motion the witness psychiatric required to to examination. That fact be submit deciding upon by heavily court in that case as relied this 212, by in 237 evidenced its statement Ind. viz: competency timely objection to of the the “In case if the this prosecuting made, had been have witness it would been duty an of the court to make examination as would such incompetency. competency satisfy it as to her 58 Am. 134, p. 101; Jur., Witnesses, 211, p. 144.” § § Again referring case, supra, page to at the Wedmore following observation, court made the this request of court, discretion, on “If the within its sound defendant-appellant herein, ex- the had ordered such an right thereby amination have the would waived report object examining physician to to the of the if was it him, adverse to given the same at time he would have been protection against fantasy all the and fabrication part prosecuting the proposed by of the Pro- witness as Wigmore. fessor . .”. In (1964), the case of Lamar v. State 245 Ind.
N. opinion E. 2d the writer of this One dissented. distinguishing prosecuting features of that case was that the boy reputation witness was and no evidence of his for truth veracity judge adduced, secondly or morals was the trial purported specifically competency prose- rule on the of the cuting case, in the witness Lamar the case at bar court appellee did not rule. so intimates the trial court, by inference, passed competency prose- on the of the cuting defendant-appellant’s witness its denial of the psychiatric motion for prosecuting examination of the witness. agree With that contention counts, we do not on two first in criminal cases all inferences are in innocence of favor defendant; (i.e. and second, if that inference trial court in passed competency case at bar on the Eby) seriously witness be contended for and court de- held, termined the trial court so the trial court then com- mitted reversible error its abuse discretion when prosecuting proved emotional imbalance of the witness was attempt the State did even even rebut or refute that evidence. require motion, of the timeliness of the
prosecuting examination, submit adversely appellee must be decided and in favor of the appellant. The motion made at conclusion of prosecuting witness, evidence whose answer the last *12 44 propounded psychi-
question that she seen a was in the School. since had been Girls’ atrist duty justice Also, sponte to see that is court sua the only forcibly by the fact the are struck that done and we age the in the record as to was evidence years age jury he of the so found its that filing imposes sentence, the Yet, after when the court verdict. probation officer, investigation by lady pre-sentence the of the age,” the that the defendant is of “the court finds the imposed maximum fine allowable under court also the statute. probation report con- that the officer’s
Are we
assume
age
appellant?
the
If so are
tained some statement as
adopted
the
court
that
from
we to
the
assume
report
jury’s
first
verdict? If we
the
assume
instead
premises,
then
as
these
arises
or either of
report
probation
the court
in the
officer’s
else
what
judge
impose
considered,
not that
and whether or
caused
fine;
finally
not the
lesser
does
the maximum instead of a
right to
deprive appellant of
report
of such
consideration
face,
of his
denial
and result
meet his accuser face
knowledge
rights?
judicial
Court takes
This
constitutional
judges
trial
have
the State
few of
the fact
they pay more
to the
quite frankly told
court
attention
probation
to the evidence.
reports
their
officers than
Bar
12, page 1120
the American
Number
Volume
thought
1966, contains a
for December
Association Journal
follows,
reading as
provoking paragraph
to-wit:
syndrome
“Unfortunately,
secrecy
courts have a
trial
pre-
report.
presentence
regarding
The undisclosed
vengeance.
practice
report
with a
is
chamber
sentence
star
liberty
may substantially
affect the
report,
This
which
gathered
gossip
accused,
rumors
the
from an
often contains
neighbor
ex-wife,
jilted girl friend,
unhappy
charge
report
enemy
of the accused. The
or other
charge
making
person
are
disclosed
At
in the
or to his
least
Star Chamber
accused
counsel.
charge
many
Moreover,
courts use retired
was known.
policemen
probation officers;
practice
hardly
calculated to advance the social considerations
involved
imposition
of sentence.”
*13
Finally
examining
sufficiency
of the evidence to
conviction,
Supreme
sustain a criminal
duty,
Court has the
law,
as a matter
decide whether the evidence is sufficient
to cause reasonable men
guilty
to believe that the defendant is
beyond
resolving
a reasonable
doubt.
In
reviewing
pass
court can
credibility
testimony
determining
the extent of
whether
Riggs
it meets this test.
(1958),
632,
629,
v.
579;
237 Ind.
147 N.
2dE.
Johnson
(1957),
v. State
509, 515,
444;
Ind.
Thompson
141 N.
2dE.
(1939),
v
129,
. State
165;
Ind.
19 N. E. 2d
Eberling
(1894),
v. State
117, 121,
1023;
136 Ind.
35 N. E.
(1956),
Baker v. State
236 Ind.
Note.—Reported in
Lentz, v. Trustee Indiana et al. 30,925. [No. Filed December 1966.]