*1 sufficiency question of the of the evidence “When most favor raised, Court will consider evidence together State, infer able to with all reasonable enees determine whether the to be drawn therefrom to returning jury facts) (trier of was warranted in * * * weigh guilty. appeal will not verdict On Court credibility wit of the evidence nor will determine the (1970), E. Powell 254 Ind. 258 N. 2d nesses.” v. State 633.
Finding error, judgment trial court is affirmed. JJ., Arterburn, C.J., Givan, Hunter, concur. DeBruler and Reported in 270 E. 2d 748. N. Note. — Steven M. Pennebaker v. Indiana. 969S203. Filed June [No. 1971.] King, Columbus, Goltra, appellant. for Cline & Sendak, General, Peden, Deputy Attorney Theodore Mark L. Attorney General, appellee. appeal from a conviction of theft J. This
DeBruler, charged by Appellant Circuit Bartholomew Court. affidavit with theft of an auto from one Harrison. by jury Trial Appel- was waived and trial was had court. years lant received a ten sentence of one to in the State Eeformatory. *2 alleged
Appellant presents several errors for review this necessary Court, however, deem it to we deal with one: namely, admitting the trial court committed in whether error objection, relating origin certain over the evidence of a certain automobile transmission. may resting upon as
This case be characterized a chain of presented circumstantial evidence. The evidence showed that 22, Godfrey 1968, Harrison, on or about June sole owner of Mart, Columbus, Indiana, reported green, Car the in that a 4-speed with GTO, 1966 Pontiac transmission been had stolen his county from used car lot. The stolen car was found the sheriff, who that testified when found car had the been engine, stripped; transmission, the wheels and seats had been removed and the car burned. The sheriff recovered a trans- Burton, junk dealer, from mission one W. B. which the identified the sheriff transmission from the stolen car. The identification sheriff’s was based the existence of certain corresponding stamped on numbers the transmission and the doorpost car. W. Burton B. testified he that had stolen appellant purchased the transmission from the on June days car, fifty the after theft the two of for dollars. Furkin request The State’s witness testified that at the appellant he a wrecker to drove some remote area where engine appellant proceeded he to remove from a engine dropped in car and some This weeds. witness fur- payment stated ther this work was some bucket seats he turn one which sold to Cal Burton. Two bucket seats along introduced into were evidence with a Pontiac mainte- wedged found nance booklet which was in the seats the seats sheriff who recovered from Cal Burton. The number in the booklet matched that of the stolen vehicle. Cal Burton testimony not and there did was the seats ad- Cal seats which in fact same were mitted in evidence from had received Furkin. Burton his appellant had visited testified that Harrison prior or three weeks times two a number of car used lot accompanied his wife appellant had been theft, and that appellant the car which was had driven child, and that buy unsuccessfully tried to appellant stolen, had and that later him. fromit against appellant the testi- case was to the State’s
Central appellant mony transmission which the sheriff days theft, Burton two after W. B. sold witness identifica- the stolen car. This transmission from in fact the only complete link constituted a tranmission tion of the appel- this evidence which connected circumstantial chain of objected Appellant’s counsel of the car. lant with the theft grounds times, the sheriff three on the hearsay, and, therefore, inadmissible. *3 following excerpt from the of the sher- to Prior iff, stamped that the number on the trans- the sheriff testified the owner of stolen car testified mission was and car carried serial num- number the stolen a serial alleged rulings court, The of the trial of 242176P149885. ber following excerpt error, have is contained in the from to been county sheriff direct examination the State:
“Q. your investigation, you attempt In the course did to particular connect this transmission with the Pontiac from stolen Mr. Harrison? GTO sir, Yes, I did.
A. Q. your investigation regard what did ? And in reveal Indianapolis, Police, they called Indiana A. and specialist to check sent down the transmission. Q. anything right, , and is there All are this about there — particular the same transmission to indicate that it is one transmission that came out of the 1966 Pon- in tiac GTO is described State’s Exhibit stolen vehicle? of this title Mr. Goltra OBJECTION: leading, object it’s going to that for the reason to I’m suggests answer on this. the reason
for Objection overruled. JUDGE: preliminary question? May I ask
MR. GOLTRA: Yes, proceed. JUDGE: any you testify
Q. Sheriff, to marks to here as what would talking you this, anything found out about have or understand, pointing out policeman, as I to a State things you? As transmission here? to to this some might told, say confirm— Well, I but to that I’ve been A. yes. Q. Yes, somebody, told needing know, I But confirm I was would
A. what call them. Mr. Goltra
OBJECTION: going object now the reason he Then I would something hearsay, he’s been told on somebody entitled else this transmission. We’re about that is so we can cross examine to them. whoever here have
v v [*] Objection I think fact overruled. mere JUDGE: knowledge degree acquired expertise is some that by or study, else, would with someone communication question objectionable, the answer to that so not make ruling stands. identifying Q. right, marks this All were there such on ? transmission Yes, sir. A.
Q. they? are And what They stamped car, are the last six numbers from the I.D. of the A. particular on transmission of this model. Q. distinguish right, any way All particular does from transmissions? transmission other Yes, this transmission be identified with this A. *4 particular GTO, this ‘ident.’ number on with the last number, six numbers of ‘ident.’ on the They on, transmission. are embossed at the head
the transmission. Q. right, this, then, All is the one and the same trans- belonged that in this Pontiac mission and was that was from GTO stolen Car Harrison’s
Mart? OBJECTION: Mr. Goltra object that, way
I that, because there’s no he could know please if Court, way he could know this.
[*] [*] [*] Objection may overruled. JUDGE: The witness answer. Yes, sir. A.
Q. is This the same transmission? Yes, sir.”
A. cross-examination, again questioned On defense counsel sheriff to determine the basis for the sheriff’s that appellant transmission sold to W. B. two Burton days theft, after was the transmission from stolen car:
“Q. you transmission, again, got This say that’s on it numbers indicate it came out of this specific car ? Yes,
A. sir. Q. you And how did learn about these numbers ? ' talking reading A. From with dealers and about —, from there, Mr. I have his name over from Indiana State Police. Q. you where found out That’s about these numbers? You everything checked it out and with the Indiana State Is that fair
Police. a statement? Right.
A. Q. you did, you just call, telephone made So what something that, like the Indiana State Police and No, sir, A. he came down and examined it. Mr. Goltra
OBJECTION: please came down and examined He this? Now if it Court, this, going on the basis I’m to move that go record, because, before, out of said testimony. is not this Sheriff’s This is what a state policeman his basing came down and examined. He’s all policeman on what state told him. Motion
JUDGE: overruled. Q. Well, stamped now 149885 transmission, on this right? *5 right. A. That’s it,
Q. number on has the serial transmission And each right, number? different serial and it’s a yes. model, particular For this A. car?
Q. GTO, you kind of a mean and no other For a Well, it. it and some don’t have some have A.
Q. don’t have them? them and some GTO’s have Some according your years Well, models. to and A. it’s Q. trying about, Well, a number I’m talk here’s what saying, oath, car, you’re under 149885. Now on I understand automobile it, in this this transmission was it left the when of Harrison’s right? factory? Is that my knowledge, yes. To A. the best Q. Well, testifying to, you’re isn’t it? no, this is what right. A. That’s
Q. words, every they to, well, car built Do have in other right , Pontiac. Pontiac? All this was was this a 1966 19— Every had num- a 1966 1966 Pontiac then right? it, GTO, ber on had a number on probably Four-speed A. had.
Q. nothing four-speed, four- Just a but other than a speed ? knowledge Well, be a my know, A. this don’t it should but four-speed.” examination, transmission the offered the On re-direct evidence, strenuous court admitted it over into and the itself objection of defense counsel. objections appellant, sheriff, witness
Over the prosecution, permitted the transmis- was days by sion, Burton two appellant to the witness W. B. sold theft, further The sheriff after from the stolen car. came upon based the existence of stated that his conclusion was upon corresponding numbers embossed transmission knowledge upon explained He that his the stolen car. further (1) rep- significance of these numbers was based specialist police to him the state who resentations made transmission, (2) inspect him to conversations called dealers, (3) reading with ear about it. The exact nature knowledge and extent of the each of witness’s received from record, these three sources is not disclosed neither is degree placed of reliance witness on each source testify, police specialist disclosed. The state neither did not talked, did the with written dealers whom he nor was the evidence, described, material which had read admitted in he Appellant available tes- at trial. contends that the sheriff’s timony that car should the transmission came from the stolen *6 hearsay permitted, not been have evidence. since it constitutes 865, In 608, Wells v. 261 (1970), State Ind. N. E. 2d 254 this Court said: “ testimony evi- ‘Hearsay is in court or written evidence court, statement dence, made out of such a statement of truth of matters
being assertion to show the as an offered resting upon therein, thus for its value and asserted (McCormack, credibility asserter.’ Evi- the out-of-court of 225) dence § University (1969), of Indiana v. Williams Trustees See also City 439; Indianapolis, Etc. Ind., Mark v. of 2d 251 N. E. 434; Wayne 511, v. 219 2d Works (1966), N. E. 247 Ind. 382; App. 10, 55 Body (1944), 115 E. 2d Ind. N. Co. Hicks 1940) Evidence, (3d ed., ; Jones, Wigmore, 2 Evi 1361 5 § 1958) ; Evidence, (Gard ed., Uniform Rules of dence, 268§ Evidence, 501; Proposed 63; Rules of Rule Model Code Rule of Evidence prin Courts, The Rule 8-01. S. District U. hearsay are that exclusion of evidence cipal reasons for the oath, subject not declarant was not under the out-of-court to confrontation trier-of-fact, importantly, and most subject the accused. McCor to cross-examination not 1365; 224, 225; Wigmore, Jones, mack, 1360 2 269.” §§ § §§ at 869. 261 E. 2d N. extra-judicial utterances not all evidence It is true that hearsay qualifies evidence. as Hearsay (ante, 1361), that, theory rule is of the “The § of the truth is offered evidence a human utterance when assertor becomes credit fact asserted of the inference, the assertion and therefore can of our
the basis subject stand, only upon made when be received therefore, extra-judicial If, test of cross-examination.
531 offered, utterance is not as an assertion the mat- to evidence asserted, ter but without reference to the truth of the matter asserted, Hearsay apply. rule does not The utterance is merely may may then riot obnoxious to that rule. It not received, according relevancy any case; be but if it rule. as it has received, way Hearsay not is this is in no due to the prohibition Hearsay rule, then, apply “The of the does not merely to all words or utterances as such. If funda- principle clearly realized, application mental a com- its paratively simple Hearsay The rule excludes extra- matter. judicial only special purpose, utterances when offered for namely, as assertions to truth of the matter evidence the Wigmore, Evidence, (3d ed., 1940). 6 asserted.” 1766 § v. Harvey 759; Wells (1971), E. 2d 269 N. Ind. v. Williams v. University supra; State, Trustees Indiana 439; McCormack, Evidence, (1969), E. 2d 252 Ind. 251 N. 225; Jones, Evidence, 271. § § inference that can made is that the
The reasonable sheriff’s was offered as evidence of the truth of police specialist him the car the facts asserted to and acting merely as a conduit for information dealers. He was Therefore, possessed in- them. sheriff’s hearsay tes- admissible as evidence. The value of the sheriff’s timony veracity competence depend specialist police car dealers who were not under oath and *7 subject not at trial to cross-examination. did the testimony upon “reading sheriff also based his about The in he in fact read is not identified in the record it”. What authoritativeness, any type, manner. do not know the We testimony, of those materials. His insofar as was source hearsay, upon likewise based this source was since the written declarant, of an materials constituted statements out-of-court materials, namely, author of the who is not even identified the subject at trial to cross-exami- and who was not witness by appellant. expert, Wigmore, in nation As stated 665b.3 § testimony field, may testifying permitted in his to base his be him. books and materials read lay permitted do In However, should not so. witness attempt qualify as an the sheriff case, no there was numbering system man- used the automobile expert clearly issue, ufacturers, he was purpose of this for the lay testifying as a witness. appel- court to overrule error for the trial
It was therefore testimony concern- objections proffered to the sheriff’s lant’s ing the transmission. identification of judgment trial trial court is reversed
The of the grant appellant’s motion for new trial. court ordered to J., Prentice, JJ., concur; Hunter, dissents with Givan and opinion C.J., Arterburn, in which concurs. Opinion
Dissenting majority opinion J. After careful review of the Hunter, respectfully in this matter I must dissent. I see find hearsay disposi- question need to reach evidence in tion of this case and would affirm the conviction. Harrison,
Testimony was admitted at trial from the owner of the element of that car which was stolen. One police was the serial number of vehicle. The point officer whose remarks at trial made the focal are majority opinion personal inspection his of the recounted stamped transmission unit and related a series of numbers Obviously great similarity thereon. there is a between the gave given fact, number the officer In and that Harrison. digits given by exactly the series of the officer matched the last digits given by six of the vehicle identification number owner. logical me not unreasonable that
It seems to a fair and similarity drawn from of these num inference could be the transmission unit did indeed come from the bers thereby linking question appellant to the stolen vehicle Clearly such an inference was automobile. made the trier assuming Further, police fact. even majority hearsay denominates is in fact officer which *8 hearsay, presumption court, exists a there as trier fact, properly considered that evidence before Swift (1970), v. Ind. 264 N. E. 2d and that nothing therefore did not enter into decision. I find presumption. rebut foregoing
For the
respectfully
reasons must
dissent.
Arterburn, C.J., concurs.
Reported in
Note. —
Melvin Smithhart v. State of Indiana. 18, 1971.] Filed June 270S29.
[No.