*1 233 beyond days contemplated by fected Rule 2-2. Further jurisdictional more, since this Court holds Rule 2-2 nature, prescribed failure to file within the time does not judgment court allow this to affirm the but must dismiss appeal. Wright, Mayor, et al. etc. et al. Dawson authority 2d cited N. E. therein. is dismissed.
Myers, Arterburn, J., C. J. and concur. Rakestraw JJ., Achor, participating. Reported in 215 N. E.
Note. —
Meredith of Indiana. 30,660. March Filed 1966.]
[No. *2 Fink, of Haymaker, Indian- Fink, Bridtoell & Robert J. of appellant. apolis, for Manaban, General, Dillon, Attorney and J. James
John General, appellee. Deputy Attorney Marion convicted in the J. The Arterburn, Court, February 11, of County Division I on assigns degree Appellant error murder. as of second crime appellant’s overruling trial of a motion for a new and upon states he relies the introduction brief objections ground of 5 and 6 on over his exhibits “irrelevant, not and did tend were immaterial any charged.” prove of the issues of the crime The brief except by identify to a not these exhibits reference does helpful briefly transcript page. would have been to have It find, however, of described what the exhibits consisted. We upon transcript testimony of and related examination photographs. thereto that the exhibits consist four Two pictures of a Buick which had been automobile wrecked pursuit by following police officers, a which the escape. an at the time of Another Meredith, ground appellant, a in a pool attempt escape, of blood as he was shot showing finally picture open, a the door automobile with on front seat what blood revolver lying on the floor. claimed, brief, as
Error
is further
stated
because
testimony
of the introduction
officers Graham and
being
testimony
Stratton, “their
connected to the
charged
being
specifica
irrelevant.” This is
specification
motion for a
trial. It
tion
of the
new
overruling
motion to
claimed
defendant’s
strike
error
being
“the
of the last four or five witnesses as not
belaboring
point,
this
relevant.” Without
we state that
proper way
not the
for trial
to save for
counsel
review
question as to the admission of evidence in the trial.
It is too
confusing. Schweigel
indefinite
6,
From the by subsequent brief on written counsel we complained draw the conclusion the evidence relating apprehension to the arrest and these officers general of the on the crime of murder. Since the appellant’s tenor of brief is that this evidence and pictures introduced as exhibits not relevant and material in the trial charge, on the murder we have given that issue consideration.
The evidence in prior this shortly case shows that apprehension appellant, and arrest of the from which these pictures result, decedent, had shot and killed the *3 Bray, following drinking William party. Robert One of present the police, describing witnesses called the the car which the leaving used the scene of the homicide. Shortly Indianapolis police thereafter patrol car saw the automobile which the and a com- panion riding, pull and directed them to over to the asking curb. names, police After their the officer arrested the appellant and the driver appellant got of the car. The of the car and fired three officer, shots at the critically wounding jumped him. The then into the car and sped away police patrol down the wagon street. pur- Another sued, forcing the car in which the plug. objected crash into a fire by One exhibit the awas of this car pursuit which crashed in follow- ing appellant’s attempted escape. In car this was found the by revolver laboratory which was identified being test as revolver which fired the bullet which killed William Robert Bray, Another decedent. one of the exhibits to which is made was a of this revolver picture of the is a escape Another exhibit of the car.
floor following injured the crash he or appellant after was shot fleeing car. attempted escape escape and avoidance or Evidence of always competent con capture of the evidence or is arrést guilt consideration a matter sciousness Underhill, Evi jury. Criminal A statement of the quoted approval (2d 1910) dence, p. ed. 668, (1961), 241 Ind. by this Court Smith N. 29: E. “ indicating person ‘Any of a statement or conduct he guilt, the time or thereafter where at consciousness crime, charged suspected is admissible as with or is a against cir- trial. Evidence of him on circumstance part person’s behavior sub- cumstances, of a which are alleged suspected sequent to an with which event in, if implicated are relevant [sic] is connected with or usual, as would be natural circumstances implication Underhill, assuming to exist. the connection or ” Ed.) (2 Evidence 213.’ (1897), 147 Ind. In Anderson et al. v. The State by this Court E. we find a statement therein N. This before us detail. appears to cover the situation now p. said at Court 452: given “In the as to the resistance made to appellants Bremen officers who arrest companions,
their mention one is made of a revolver used them, of one kill and with which an effort made him to officers, complain and counsel because this brought revolver was into court and identified. That those charged arrest, accused the crime should have resisted endangered officers, attacked and the lives escaped, and that of them thus were circumstances three brought knowledge jury, proper for the to be *4 showing purpose guilty assaulting resisting ar- crime of the officers or additional rest, purpose determining but for whether guilt or was not an indication of the of the instructed the conduct was crime charged; particularly and the court pro- force and of such evidence. The as to the effect proper giving revolver was a incident to the duction
237 Jur., Homicide, Sec. also: 26 Am. R., 886, of this evidence.” See 360, p. ; (1923) 404; Annot., Fletcher 25 L. 897 A. 146; 687, State (1949), 2d Ind. 88 N. E. v. State 227 70; (1940), 2d Porter v. Torphy 28 N. E. 435; (1957), 236 (1850), 2 Martin State The Ind. 141 N. E. Ind. goes in magnitude defendant to a and extremes which The jury’s competent escape certainly for the attempting are to willing to The fact consideration. killing a capital commit a is a matter relevant to rather than submit to arrest only in gun used not guilty conscience. which decedent, death attempt escape kill with whose to but to relevancy charged, to has utmost escape relevancy picture A of the car to has used issue. showing the violence with which a to which officers had resisted arrest and the extremes certainly competent go apprehend him, evidence. If description given by of a may a witness scene verbal be a certainly parties, then and the actions competent. depicts more detail is the scene with It has been said: admissible, objection no that a otherwise it is “When prejudice gruesome, likely inflame or photograph or jury. to photograph A is therefore otherwise admissible
the
not
with his
the naked or
garrotted
though it
child
excluded even
shows
identification,
prevent
hands and feet cut off to
Wharton,
decomposed
2
body of the victim.”
1955) ;
(12
Annot.,
Evidence,
p.
ed.
654
Criminal
§
;
Ewbank,
R., 1413,
(1945) 1
Indiana
A. L.
1956).
395, p.
(Symmes
Law,
ed.
sec.
disagree
gruesome
hardly
of a more
can
conceive
One
decomposed body of the victim of
picture than
of a
able
in weeds with the skull
homicide found
showing,
true in Hawkins v. State
as was
bones
79. The same
was-
37 N. E. 2d
here, namely
its introduction inflamed
made there as
prejudiced
emotionally
the defendant. The court
*5
analyzed
law, citing Wigmore
and stated that where oral
competent
facts,
is
describe
competent
details, regardless
to describe the same
of how
gruesome,
revolting
may
horrible and
be. See also:
Denson v. State
objections trial, made thereto at the as stated in the transcript, specification. fail to The include such mere injurious fact (i.e. prejudicial) evidence is to a defendant incompetent does not for such reason it make inadmissible, fact, if relevant. As a matter of all evidence presented which is by party relevant and or a prejudicial. law suit is very purpose It is introduced for the influencing jury. only It irrelevant, when evidence is regardless damaging (i.e. prejudicial) nature, its it becomes inadmissible.
The fact that may revolting gory, details of a murder or inflammatory presented grounds when to a is no excluding evidence, as revealed the cases cited above. No crime is a party.” real, “tea Life is and the entitled to all relating the details of the acts of a defendant to the crime. No defendant a criminal case is entitled to have revolting, inflammatory relating gory details excluded, if participated evidence shows he brought the activities and about such a To hold condition. otherwise would protection be to throw a cloak of about those guilty horrible, revolting gory acts which them- selves create. judgment of the trial court is affirmed.
Myers, Rakestraw, C. J. J., Jackson, J., concur. dissents opinion. Achor, J., participating.
Dissent J. I am majority opinion. unble to concur in the Jackson, By this may dissent I say do not mean to charged. he I guilty not be the crime with which do say adduced that from the evidence charged by indictment with the crime of murder in the degree Bray, of one William Robert and convicted second thereof evidence that afterwards shot officer Dashiell Department. Indianapolis Police objected Appellant to the introduction of State’s exhibits 3, 4, photographs 6. These exhibits were taken after *6 alleged shooting the murder and connection with of the Dashiell, my opinion, improperly and in officer were admitted and such admission constituted Further reversible error. ad- testimony of of mission the one Bill Northerner as to the shooting Dashiell, appellant, of officer over the of my opinion, constituted reversible error. The exhibits and occurring the the witness related to events after crime, presumed the commission and must be to be prejudicial prove any for the that reason do not tend to charged. (1960), elements the crime Loveless v. State 864; Hergenrother 240 Ind. (1939), N. E. 2d 784; 18 N. E. 2d Miller State 255, 91 930. N. E.
There no evidence record of officer Dashiell’s testi- mony particulars broadcast, as to the after which he stop appellant, to as to whether the car which stolen, found was was whether occupants wanted, occupants were or whether or not the apprehended. the automobile should be light certainly Exhibits five and six can no throw on the charged. which with was Exhibit five is pool identified as in a of blood after he was other officers after shot he had shot officer Dashiell. Exhibit is a six the car riding showing right open, laying front door a firearm floor, on the and what to be blood on the seat and floor of front of the automobile. Exhibit six is identified gun laying officer Graham hat’s a that as there “[t] ground.” up picked Meridith was lain I after
that Again photograph taken is true exhibit six is after it had after officer shot he shot Dashiell. other officers evidence, improperly admitted in exhibits shown These on, and commented their admission under present in this cause circumstances constituted reversible error. shooting
Appellant’s point, the evidence relative to the prejudicial Dashiell the constant repetition of the same evidence so inflamed the regard was submitted clouded degree murder, charge my opinion second well taken. grant remanded with should be instructions The cause appellant’s trial. motion for a new Reported in 214 N. E.
Note. — Hospital ex rel. Gibson General et al.
Warrick Circuit Court *7 30,631. Filed March [No. 1966.]