*1 20 610, (1966), Richardson v. State Ind.
or administrator. 247 345, 347; 299, (1948), 220 2d Schuble v. State 226 Ind. N. E. proposition 2d of law has N. E. 647. This same most 79 Willough recently reaffirmed Court case of been this (1969), Supreme No. v. Indiana Court 968 S State reported by yet Court. decided but not this therefore, ample We, hold that there is evidence upon Lance the Trial Court could find that Don record which owner within the definition statute. was an appellant claims that the conviction the instant also subsequent prosecution a on a a bar to case not be would obtaining property charge in which it would be this same Inc., Bloomington, alleged A Drive-in of & W agree with this contention. Indiana fol We do owner. regard single larceny to former doctrine lows the jeopardy. Court has where there This held that owner, con- property theft held more than one any ownership alleging one of own- viction prosecution alleging any further time ers is a same bar to ownership place in another. Furnace v. State but same 441; 42 (1873), E. Bell v. State Ind. N. Ind. 335. judgment the Trial Court is affirmed. Hunter, JJ.,
DeBruler, J., and Arterburn and concur. C. J., Jackson, in result. concurs
Note.—Reported in E. 156. 245 N. 2d
Greer v. State Indiana. Rehearing April 23, 1969. denied [No. 168S4. Filed March 1969.] *3 Everett, Haute, Warren R. appellant. of Terre for Dillon, John J. Attorney General, Killian, Deputy Rex P. Attorney General, appellee. for Appellant charged by C. J . The indict-
DeBruler, degree ment with quash first murder. A motion to indict- ment was filed and overruled. pleaded guilty, by jury guilty degree was tried and found of second Following receipt pre-sentence investigation murder. adjudged degree trial guilty court of second imprisonment. murder and her life sentenced A motion for trial new was overruled. assigns appeal as error on certain actions of overruling quash, trial court refusing motion to jury withdraw submission the case from the after
alleged improper prosecutor opening comments in his overruling statement, Appellant’s objection ques- to certain *4 propounded Ford, admitting to the tions witness and in a Appellant made written statement the in evidence over Appellant’s objection.
24 Appellant the first that court over- contends erred in
ruling quash motion her the indictment which indictment pertinent part reads in as follows: Vigo County, Indiana, Jury the “The Grand of in State of good duly legally men, impaneled, charged and and lawful inquire and into felonies and certain sworn misde- Vigo, body County of of for said and meanors Indiana, authority of of the name and the State present Judy Greer, on one of their oath late said 1966, County day A.D., State, October, on the of and 21st County aforesaid, at said unlawfully, malice, and State did then and there feloniously, purposely premeditated and with Greer, kill one then there and murder Edwin and unlawfully, feloniously, purposely premeditated with and holding beating, striking, and Edwin malice said Greer he, of such manner to cause which suffocation Indiana, County Vigo, Greer, State said Edwin Jury aforesaid, on then there died. And the and Grand aforesaid, say charge Judy their do Greer oath and unlawfully, aforesaid, felon- did the manner and form malice, premeditated iously, purposely kill and Greer, being there all then and murder the said made contrary and form Statute in such to the cases against peace dignity provided, State of Indiana.” (1957), v. State
In of Hamilton accordance with case 2d and Martin v. State 145 E. 391 237 N. Ind. N. 2d now hold that with Ind. E. we ruling degree charge respect murder the of first quash on motion to the indict the trial court appeal and moot on ment harmless since is both offense of of the lesser and included second was convicted murder; degree now consider whether not second and we charged in degree properly the indictment. murder argues indictment was void because that this sufficiently certain statement it did not contain uncertainty argues fatal first offense. apprise her of of the indictment failure from the arises alleged from a “beat- victim resulted death of the whether *5 “striking”, “holding ing”, a a or a in such manner as cause argues Appellant that in the event suffoca- suffocation”. also death, tion is to be the sole cause of she is not considered as apprised “beating” “striking” of how and suffocation. caused argument attacking sufficiency her last of as argues “beating” “striking” the indictment and if alleged in not the indictment did cause the suffocation then presence surplusage their and indictment is makes it fatally uncertain.
Appellant’s first contention is not well taken because it possible is not to read the indictment in manner such as support interpretation. “striking”, “beating” this The acts of “holding in said Greer such manner toas cause parallel causing suffocation” cannot be acts death since the grammatically logically indictment cannot be read as Judy Greer kill follows: “... ... did ... and murder one Edwin Greer, by beating, striking . . . of ... which . . he died.” Such a construction is too strained this does not con- grammar. form the of suscepti- rules indictment is being interpreted ble of manner. addition,
In the record of trial reveals the court overruling quash, motion to proof limited the State to by suffocation, and, cause of death therefore, against that she need knew not defend
possible assertions the State that the cause of death “beating” “striking”. or Appellant next contends that if only is the suffocation death, then cause is indictment invalid because it does “beating” not contain certain how or “striking” caused the death suffocation. We hasten point alleged it “holding” out that neither is how In caused death suffocation. the case of Littell v. State precise Ind. N. E. was held that the precise applying force, description manner or a medical ceasing bodily of each function properly are matters only necessary for trial. The evidence at the facts to the indict required by ment are those Burns’ Ind. 9-1104 Stat. Anno. § part which reads as follows: indictment indictment “Contents of or affidavit. —The contain: affidavit must constituting A statement facts “Second. language plain un concise without
offense necessary repetition.” charged It that the is clear from this indictment *6 degree Greer, murder of and the with the first that Appel The death from suffocation. victim’s resulted by this indictment of the offense lant notified was charged pre and that she must be of which she was against allegation by pared an of death suffocation to defend during from an attack which the victim resulted which turn nothing or beat, held. There uncertain and is struck was interpreted in when this manner. in the indictment defective finally that reasonable to Appellant contends is striking” separate “beating, interpret in the indictment as the in death that the did not result but acts which and distinct and “holding” suffocation resulted in act which of the act striking” “beating, are a result death; and that as uncertainty lack notice surplusage fatal and and create against. defended had be of what “striking” surplusage, “beating” and are considered if
Even quashed unless, surplusage with the not be indictment will the not contain sufficient struck, indictment does the charged.” person and indicate the crime “to matter 41 N. E. 145 Ind. Drake v. State considering (6). 188; When so § Burns’ 9-1127 44 N. E. that contains it still indictment causing by by death degree suffoca murder first committed surplusage therefore, considered holding, and, when tion being “beating, striking” would in the indictment the words ruling quashing the indictment. not result in a though susceptible of reasonable two Even indictment is this “striking” "beating” namely, and con interpretations, they causing and that death suffocation tributed causing suffocation, separate death not acts rights prejudice no to the substantial there is Appellant. any imperfection which does For other defect “Tenth. rights of the prejudice of tend to the substantial (10). upon Burns’ merits.” 9-1127 § defendant alleged victim Edwin Greer was
The trial revealed that the old after months son and died when six having physician on behalf A testified been beaten. facture of the State that the victim suffered skull right humerus; side and broken left depressed pushed head face had been over longer symmetrical. no He further testified face were stomach, injury the child and that the the child died on his time as the head and arm occurred at same victim’s death, and that the fractured resulted in suffocation which indictment and arm did in death. In this skull not result “beating” plead and “strik the further acts State chose to in death. ing” part attack resulted which which were given indictment than more facts *7 notify to her of the offense of would have been sufficient presence charged in from their and benefits which she was upon alleged any the attack The nature of the indictment. go clearly to into matter for the State relevant victim is proving of unnatural that the died causes. victim following argument facts: Appellant’s involves second days old, Greer, admitted to May 20, 1966, was Edwin 7 On Having injuries. hospital of head for treatment a Terre Haute Judy this, police to the home went notified of been investigate Edwin, to these Greer, year-old mother of agreed injuries. go police headquarters Mrs. Greer to to down a.m., 21, May 1966, police at 10:00 to her talk to the about injuries. police headquarters child’s arrived She at without having attorney. police an consulted asked her about injuries, to and her told them he had fallen child she off a sofa. police expressed When disbelief at this Mrs. Greer said well, you According police, I’ll “Oh tell the truth.” to the at point they gave her their advisement of consti- standard rights, following tutional :(1) which consisted of the She could attorney one; Anything have an (2) if wanted she she said against her could be used at a She trial. was asked if she will, to make a of her free no wished own yes. promises, to threats which she answered Mrs. Greer police slapped stated to then she had the child hard crying making very her twice because it was nervous. signed writing This statement reduced to Mrs. was baby Greer. On June was On returned her. 21, 1966, Greer, Mrs. Greer killed Edwin October which degree murder trial from resulted first which this Testimony appeal oral is taken. about Greer’s Mrs. statements concerning (State’s “2”) Exhibit written statement beating May 20, 1966, Greer, of Edwin were introduced They evidence at the murder trial. were offered and prove part Judy intent and malice on the admitted Greer killing Greer. Appellant argues the statements were inadmissible because appellant properly had not of her been advised constitutional being questioned rights prior police, required Supreme by in Miranda v. Arizona United States Court 1602, 16 L. Ed. U. S. 86 S. Ct. 694. incriminating First, question we note that the statements about the crime for which the were statements tried, prior being but concerned the on assault prove and were introduced to intent Edwin Greer killing child. and malice in the The statements tending prove evidence one element of used as
29 they charged; of the crime crime not “confessions” normally charged They of of one element it. would even purpose. v. State for a limited Wahl be admissible such 671; 521, (1951), v. State 229 Ind. N. E. 2d Peats 98 (1938), 560, 270; clear 213 Ind. 12 N. 2d but it E. is taking apply of such statements Miranda rules would incriminating way. They state which are used in are this still against There an him. of accused introduced evidence ments self-incriminating principle no difference between is as of one element and admissions statements used as evidence of all the elements.
However, unnecessary of in the view we take case it is this rights by to determine or not whether the advisement police in set out in the this case meets standard Miranda Even if the were inadmis case. statements rule, error under the Miranda it harmless sible repeated apparent from the record it is because story fully examination, complete openly on direct concerning prior and the made assault statements police. authority error to the effect that
There is
in Indiana
a
waived when
defendant
is
admission
statements
substantially
he
the same facts as recited
testified to
(1953),
Beeman v. State
232 Ind.
in the statements.
683,
Turpin
(1934),
919;
v.
206
N.
2d
State
115
E.
dealing
are
E.
But in
case we
Ind.
189 N.
403.
apply federal
a
error and we must
federal constitutional
Chapman
to determine if the error was harmless.
standards
L.
Ct.
Ed.
U. S.
87 S.
v.
California
defining
court there said:
such a standard the
2d 705. In
meaning
therefore,
“We,
adhere to the
do no more than
do,
hold,
Fahy
that before
case when
we now
our
we
harmless,
held
constitutional error can be
a federal
a
it
able
belief that
the court must be
was
to declare
beyond
ap
a reasonable doubt.
harmless
While
original
ordinarily
pellate
task of
have the
do not
courts
applying
test,
courts,
such
a familiar
standard
all
adoption
provide
and we believe its
will
more workable
standard____”
2d (1953), Chambers v. State 232 Ind. N. E. 2d 816. determining apply We are now to this test ourselves in whether a federal constitutional error was harmless. hold, Appellant’s then, testimony
We that on exami direct concerning prior nation assault on Edwin Greer rendered (if such)
the erroneous it was into evidence admission incriminating concerning of her that statements assault, beyond a A harmless doubt. similar reasonable result was reached in State v. McDaniel N. C. erroneously 158 S. E. 2d where statement admitted concerned the crime for which the defendant was being tried. say in is not to that constitutional error the admission
This incriminating always of an an accused is
automatically rendered harmless the accused testi concerning fying same facts that were compels If statement. the constitutional error explain away deny in order to or to take stand defendant statement, substantially choice of tactics restricts the presenting defense, in his then we counsel defendant’s say beyond á error harmless reasonable would not. testimony Appellant’s appears the record of from doubt. It case, above none of the on direct examination present. factors were preliminary questions, examination, after some direct
On we find this:
“Q. Judy, you while have been the Courtroom Now presented and have heard evidence has its state evidence, all of that correct? Yes, I
A. have. Q. presented re- state in You heard the evidence body child, lation assault on the to an Greer, May 1966? A. Yes.
Q. you happened time.” Will tell the court what at jury proceeded the events then to tell the about greater surrounding detail Greer in the assault on Edwin by the than introduced State. was included the statements following portions record further indicate the tenor *10 of the direct examination.
“Q. right? slapped you him, And had is that Yes,
A. I had. Q. testimony was, by Officers, Police that The here twice; you you them once or told that it was you him time. the third Is sure whether struck you them at that time? that did tell what Yes, A. I did.
Q. you anything? do, Then what did if Q. up you your anyone Judy to had told mother time, you slapped or the child? that had struck anybody. anything I to A.. No hadn’t said Q. Alright. ahead. Go
Q. you Did tell her you that time at that had struck baby? No, A. say I anything didn’t to her.
Q. Alright. Go ahead. Q. question Did you regard the doctors how to baby might injuries? have received the A. yes, right. Oh Conway Dr. that’s asked did I me know happened how it that the I thing, also told him the same baby had fell off the couch. Q. Why you did tell him that? Well, got
A. I by listening had scared to talk- this nurse ing downstairs. Q. Alright, go ahead.” being obviously encduraged allowed and story way any tailoring tell the full in her own without story by explain away that counsel to the statements of introduced the State. also testifies giving
about the of those statements.
“Q. Alright, go ahead. happened up including Friday
A. I told him what night night 20th, before we went to the hos- pital happened I I told him remember what all could about go night, I mean after we hos- that pital. Q. ago you to awhile Is that in substance what testified regard striking baby? my only thing put A. he didn’t Yes. was actually I I remember that told him didn’t hitting nobody he baby, I had be but knew it to me because burning. Well, my hand was was there and baby’s put part face there . . . and the got I him I’d scared was sort red and told *11 picked up. him Q. Judy, Two, the state- Exhibit Number is Then State’s signed, you gave police and back which ment right? May, 1966, 21st of on the is Yes, A. is it.
Q. you completed typing the statement he After any signed it, they additional conversation did have you there at that time? sign right He they typed up. had I it after it A. didn’t myself he had me read me read it to and then to them. back
Q. you ? did do that And Yes, I
A. did. 'Q. signed you it, that correct? And then is signed yes.” it, A. I Then testifying about the events
Even when May freely 21,1966, to the assault. she refers October “Q. say next then, Wiram] what did he [Detective Now anything? if he said May happened in when A. me to tell him what He asked I I got I how had told him and had arrestecl and Logansport. been sent Q. May you happened in in ac- Did him to what tell as you cordance this here in Courtroom with what said morning? A. Yes.”
On re-direct examination testifies follows: “Q. say Ford Bealmear You that Detective were questioned you regard to the occurrence ones May, correct? last is that
A. Yes.
Q. obtaining they you any way in Did harass
statement? No, they very A. me. nice to
Q. they Did against make you accusations you that had deny? to A. No.
Q. you So that when you told them that did strike the you baby, telling truth, right? the is that A. Yes, I was.”
It is clear from the Appellant record that the testified freely and in detail about May the events of On 1966. direct repeated examination she the same contained facts in the by statements greater introduced the State in even detail and she affirmed the truth of those facts several There times. is no hint that the compelled admission of those statements Appellant qualify to take the stand in order to or explain away the contrary, those facts statements. On repeatedly affirmed the truth of them. Neither any is there hint the admission of the statements restricted the choice Appellant’s tactics counsel presenting her continually defense. He induced to tell story fully her way. and in her own The tenor of Appellant’s testimony shows that if it awas federal consti- tutional error evidence, to admit the statements it was beyond harmless a reasonable doubt.
Appellant’s argument third is that it was error for the prosecutor, opening Appel- in his to statement refer to the prior lant’s assault on Edwin and her to Greer statements police about that assault. The reason offered that “at stage trial, way prosecutor there no any or the certainty court could know with that evidence of prior injuries by received the child and the statement Appellant relating injuries admission to how as those occurred, would be admitted into evidence.” only Bolden v. State 199 Ind. cites argument. support In that case the N. E. his prosecutor opening off a in his read list several statement prior committed the defendant. The court said: offenses court, action, error “In criminal it for a is reversible permit Prosecuting objection, in his Attorney over opening of the accused to attack the character at charging other 199 Ind. crimes.” commission 164. impeach prosecutor other crimes There the mentioned he took the stand. the defendant before the trial before prosecutor prior assault In mentioned case impeach Appellant, offer, evidence but he would says: prove 9-1805, In Burns’ intent and malice. § jury being impaneled sworn, trial “The shall proceed following order: *13 attorney prosecuting of the case must state “First. prosecution briefly by which and the evidence state expects support he to it....” prior of is admissible Evidence on the same victim assaults Wahl prove malice. a murder to and trial intent supra. supra; State, State, Peats v. v. uncertainty prosecutor only for would source under not the evidence admissible
have been whether was or require- Miranda Miranda rule. the time of the trial the At yet to a crime ment been held statements about had not cover being one was then other than the for which the required anticipate a prosecutor to such tried. The was not permit prosecutor holding. to make if it error to Even was statement, error for opening an it the same was harmless such of the into evidence rendered admission reasons which harmless. Appellant’s about assault statements Judgment affirmed. JJ., Hunter, and concur.
Arterbum, Givan, opinion. Jackson, J., dissents Dissenting Opinion, Jackson, agree am to J . I unable with the determina- opinion tion majority respectfully reached in the dissent following thereto for the reasons. appears May 20, 1966,
It from the record that on some six alleged prior herein, months date in the indictment appellant upon child, had committed an assault this same thereof Greer. That as result she was thereafter con- Logansport Hospital, fined State one of institutions for confinement, the insane this State. Such in view of the prosecution bar, together criminal in the case at with the fact beginning very at trial State herein prior May grave referred to the assault raises capacity appellant day doubt mental as to the on the 21st October, charged. to commit crime Ordinarily defendant, an be such issue would raised through witness, but here the fit to do so State saw its Greer, Samuel Sr. who in direct examination the case in questioned testified, appellant’s chief about over objection, by appel- of a letter him the contents written to Logansport Hospital. lant while at she was State my opinion, having In the State for reason seen some fit obligation showing ghost lay raise the had the prior 21, 1966, appellant to October had either been dis- charged cured, dangerous improperly she was Logansport Hospital place. confined in the State in the first *14 having discharge duty, The State failed to this cause grant should be reversed and remanded instructions appellant a trial. new Reported in 245 158. N. E. 2d
Note. —