*1 674 6;
(1928), 4, (1924), 200 State Ind. 161 N. E. Carr v. 162, (1916), 194 Ind. 142 N. E. Trattner State 188, (1903), 185 Ind. N. Jackson v. State 113 E. 36, 690; Meyers E. 67 N. v. State 161 Ind. 156, 1052; Ledgerwood 388, State E. v. 81, 631. N. E. logically that a for new follows belated motion
It pre- remedy appropriate not an errors
ceding plea guilty, judgment on a rendered Rather, under never was trial. since there appropriate remedy circumstances petition plea aside the be a set would guilty. petitioner Furthermore, not entitled the relief alleged. The he the merits issues seeks petition response filed a to the has state transcript proceedings tim had at e they arraignment petitioner’s conclusive allegations petitioner. ly asserted contradict is, therefore, petition for writ certiorari denied. Myers, J., Arterburn, concur. Landis & JJ.
Jackson C. Reported in 210 N. 2d 372. Note. — Indiana.
Polson Rehearing 30,548. June Filed [No. September 1965.] denied *2 Broadfield, Indianapolis, appellant. Jack W. for Attorney General, Steers, Edwin K. E. Carl Attorney Dorn, General, Van appellee. Assistant for Appellant appeals from the Landis, J. convicting jury
rendered on the him of verdict sodomy for which he fined in sum of was $100.00 imprisoned years two to fourteen in the Indiana assigned overruling Error State Prison. on motion for new trial.
Appellant complains appeal first on this that overruling objection court leading erred in his question by asked on direct examination However, showing by State. there appel is no in lant the motion for ques new trial that this order, by tion was ever answered the witness. In prejudicial overruling error to be committed in objection leading an question, to a it would necessary by that such be answered appellant In witness. view of the failure ques motion for new trial that such by tion answered there is no 6.76 State See: Henderson presented.
here (cert. 326, 327, 132, 134, 131 N. E. 2d Ind. den.) 100 L. ed. 76 S. Ct. 351 U. S. Ray 495, 499, H., 176, 178, 121 E. 2d F. Indiana N. W. & 2d p. Appellate Pract., §1812, Trial and by Appellant contends error committed further admonishing appellant's dur- the trial counsel court ing Jerry Heaton, . . Viz: “. the cross-examination questioning.” you line of from are cease appellant is considerable doubt While there brought ruling properly has before us the trial appeal, if on we over- court that we review it so omissions, appears procedural look defects or sustaining appellant complaining objections to three asked the trial court by appellant’s They on were: counsel cross-examination.
“Q. you . . . have done it with acts] [unnatural , other men? “Q. you in school? Are a.little behind “Q. alright your Daddy you Did tell that was to girls?” relations with other have sex little to unable conclude the court committed We are inquiring of as The the witness error. first properly men unnatural with other could acts by objec held court to be have been general judgment, in our as the rule tionable impeached by attempting a cannot be witness Griffith, The State specific immorality. of acts Bessette 163, 166, (1895), have The State 88. It would affecting course, proper as witness's been gen credibility on cross-examination that his to show good. The extent not eral moral was character cross-examination is matter the trial court’s within discretion, sound and we do believe under not brought appellant facts of himself this case within any exception con- to the rule as would warrant us in cluding such abused. discretion was
As to second to whether wit- school, appellant ar- ness no was behind has made gument relevancy. its In view the trial wide court’s area discretion as to the extent cross-examination, we do not see that judgment. here so abused as to warrant reversal question asking The third had what father hearsay obviously told the for a called answer, and no therefore the court committed sustaining objection error to it.
We find no reversible error.
Judgment affirmed. Myers, J., concurs; J., Arterburn, in re- concurs sult; J., Achor, opinion; J., Jackson, with concurs C. opinion. dissents without
Concurring Opinion J. It cited occurs to me the authorities Achor, appellant and relied both the the State require further clarification. opinion,
As noted in the we are here concerned with charge sodomy. morals witness, boy years age, questioned of 15 on cross- examination as to the fact of unnatural acts with interpret other I it, men. As opinion, the court’s *4 indicating exceptions without that there are thereto, upon general relies the rule that “a witness cannot impeached by attempting be specific to show acts of immorality”, interrogation that such must be limited “proof general reputation.” The cases of Grif- 440, 39 N. E. 140 Ind. The State
fith v. are cited The State and Bessette supporting proposition. the recognize opinion However, I that the should think general exceptions to this the fact there are recognized case, rule, in Bessette one is the of which opinion. supra, The Bessette relied in the court’s case, In case, involves sexual offense. does this charge case, sodomy. In the Bessette this case the case, statutory rape. the offense In the Bessette regarding developed the that at the examination justice offense, peace, before the the place aat locus the act took witness testified and-, proved to be false. under circumstances which later, trial, at the testified that the act took Then she During place wholly under different circumstances. prosecuting witness, the de cross-examination the questions propounded limited to not fense numerous general reputation” regarding “proof the con but prosecuting witness, were the which duct designed prove de of “debased and that she was prosecution praved mind” and the condition of instigated may purpose of for extortion. have been testimony. rejected all The trial court such However, appeal, on held that this court under rejection testimony circumstances, court, This re- constituted an abuse of discretion. versing case, trial court in stated: the Bessette “The extent to which a cross-examination in, ques- carried, indicated direction resting ordinarily tions, the sound a matter is prius discretion of nisi court. immorality specific or The rule that acts of proved misconduct of a witness can not be discrediting him, purpose of is well settled and infringed upon, not to be but that rule not. under consideration.
involved in to the extent here is as which *5 may go, cross-examination of a witness when object the impair credibility by of it is to his questions tending to show the motives or interest testimony given, under which his or that ishe depraved character, or that his an habits and tecedents are immoral and infamous. . . . proper It is propriety, within the of bounds to court, be controlled ter and the the charac subjected antecedents of a witness be cross-examination,
to
test on
and that
go
which
to exhibit his motives and interest as
witness,
tending
a
character
as
as
well
those
to
his
antecedents,
and
should be allowed.
Ev.,
544, 545;
Wiley,
Wharton
sections
Johnson
Flood,
Wilbur v.
Mich.
Commonwealth
Bonner,
[My empha
v
subjected scrutiny regard- to the of cross-examination ing the immoral “habits and antecedents”1 of the wit- (2nd Dictionary ed.) 1. Webster’s New International defines these words as follows: aptitude acquired Habit: “An or inclination for some action by frequent repetition showing in in- itself facility performance creased or in decreased power resistance; ... life; previous Antecedents:'“The earlier events of one’s principles, conduct, course, history, ancestory.” also State, ness constitutes error. Bessette v. reversible supra.
However, I concur in the result the reason that patent in the case there no instant contradiction testimony in the witness which necessarily credibility created doubt as testimony. acceptance rejection Therefore, his or testimony was within the discretion circumstances, say trial court. Under cannot these we rejection testimony court’s elicited *6 required constituted an abuse of discretion which granting reversal of the and the of a new trial. Reported in E. 2d 688.
Note. — Indiana.
Cichos July 6, Rehearing 30,482. Filed [No. 1, 1965.] denied October