*1 guilty of the support its verdict before dence robbery. crime of therefore, is, affirmed. court trial JJ., concur; Hunter, Pren- J., DeBruler and
Arterburn, C. J., tice, in result. consurs Reported in 280 E. 2d 575. N.
Note. —
Henry State of Indiana. Turner J. April 4, Filed 1972.] 470S93.
[No. *2 Raymond Róbale, Róbale, S. Greenfield, appel- & for Wolf lant.
Theodore Sendale, Attorney L. General, Hanley, J. Frank Deputy Attorney General, appellee. together appellant, co-defendants, J. The with two
Givan, charged by was degree indictment with the crime of first mur- der and murder in the commission of felony, to-wit: rob- béry. Separate granted appellant’s trials were co-defend- Appellant by ants. guilty was tried found manslaughter. lesser included offense of The evidence most favorable to the state discloses: decedent, Dale, The during Charles was beaten and robbed night February 22-23, Shortly 1969. after incident home, bloody he returned mother, He wet. told his “Two men really tonight.” have up beat me Shortly thereafter he lapsed coma, County into a taken was to Marion General Hos- pital surgery performed. where He in a remained coma until his death on March
Billy Cawthon, alleged accomplice appellant Joe charged crime, commission of testified that he was Haughville present February in the Tavern on 22, 1969, at 10:00-11:00 He about P.M. stated that as he came out of building he noticed commotion across the street and saw Emerson, the other case, Eichard co-defendant in this run building by behind the followed the decedent. Emerson up down, picked a brick and bent ran around the The tavern. building. went decedent also behind Cawthon testified he little heard “a smack” and he Turner say, heard Eich- “damn ard.” witness crossed the street and asked what was going robbed He then the defendants beat and on. told how the decedent. blow pathologist that decedent died of a severe testified head, been caused probably not have which could fist. being appellant after first the time the was arrested and
At rights having his waived advised of his constitutional attorney gave right present, statement a written to have an join agreed police he he had in which stated that robbery in the Cawthon and Emerson resulted further de- In statement decedent’s death. against in which the attack occurred scribed manner decedent. Viola permitting
Appellant trial court erred claims the testify decedent, Dale, Dale, the mother of Charles 2:00 A. home about M. the decedent arrived to her morning following alleged stated attack and It is severely men. some had beaten that he been *3 by his to position the decedent appellant’s that this remark the al place far removed time and mother was too part res of the leged attack to constitute a scene of the deciding was this evidence gestae. or not Without whether rule, hearsay gestae exception to the admissible res under the harm of such substantial we that its inclusion was not hold justify other sub There appellant’s reversal. was to case to in fact receive a severe that the decedent did stantial evidence night question. beating the someone on at the hands of nothing Even if to this fact. The added mother’s rejected have been of decedent’s mother should the decide), harmless (a its admission was which we do not fact by clearly merely proven other recited facts that it error in (1970), 608, 261 competent 254 Ind. evidence. v. State Wells 573; (1968), 865, Rowe State 250 22 v. E. 2d Ind. Dec. N. 576, 516; 547, 14 Peterson 2d Ind. Dec. N. E. Ind. 237 13 Ind. 488, 234 2d Ind. Dec. 269, N. E. State Appellant alleges permitting next the trial court erred Fagan, grand jury one John Robert foreman of the against appellant, testify returned the indictment grand jury to evidence before received from his memory reading transcript without from the proceedings jury. grand grand before foreman by appellant pursuant 35-1-15-17, was called I.C. Stat., 9-817, Repl., also found in Burns Ind. for the § purposes impeaching no witness. We find by appellant merit in this contention and further note objection by no was raised at the trial procedure the trial followed court first court. allowed the refresh memory witness to from the tran- script grand proceedings jury, permitted before then testify. State him to In Richardson Ind. 266 N. Ind. Dec. this Court held that it proper permit grand jury was testify a member of the concerning proceedings grand jury before the and to re- fresh transcript proceedings. his recollection from the of such
Appellant contrary next claims the verdict reviewing to law and not sustained sufficient evidence. In allegation sufficiency of the evidence this Court weigh questions will evidence nor resolve credibility only of witnesses. We will look evi- dence support and the reasonable inferences therefrom which jury. Asher verdict 253 Ind. 244 N. E. 2d 16 Ind. Dec. evidence 429. There is in this record that the decedent died from a severe blow on the head during alleged robbery. and that blow such was received appellant per- It is true there no direct evidence sonally ample struck death blow. There evidence *4 jury acting the find could the was inflicting injury upon in concert others with in the decedent. support sufficient Such evidence was the verdict. The trial properly court instructed the as follows: person “Every the commission shall abet in who aid or felony, eneourag'e, command, counsel, hire, of a or shall who felony commited, may procure or a to be be otherwise charged by indictment, in affidavit, tried convicted or or principal, manner as if either before same he were a charged, principal con- after offender is indicted or victed; and, upon he the same such conviction shall suffer prescribed punishment penalties by law for the are principal.” punishment of contrary We, therefore, the verdict was hold by it sufficient evidence. to law and that was sustained reading Appellant the trial court erred in next claims jury, reads which instruction court’s Instruction No. as follows: by prior may proved “Malice direct evidence such as be perpetrate seeking opportunity or threats, assaults may express also be Malice act. This called malice. pur- killing killing implied from the is done provocation; act of if legal posely excuse or sufficient and without deadly weapon perpetrated a so used the act is with if in- likely death, purpose kill produce as to killing.” from the act ferred the reason erroneous for
Appellant instruction is claims this deadly weapon whereas he claims it use of refers deadly weapon nor does use there is no evidence deadly weapon. charge find use of a We the indictment this There evidence appellant’s contention. merit to no say cannot assault. We brick was used that a by injected the trial into new fact trial court therefore, in- We, hold the giving instruction. in the case. applicable to the evidence received struction refusing alleges erred trial court Appellant next reads as Instruction No. which tendered give appellant’s follows: cautiously re- should be “The weighed jury, carefully scrutinized ceived credibility.” according to its
272 question testimony accomplices
There is no but what the of one accepted However, long at time was not at all. Indiana
ago by specifically provided testimony statute the for accomplices. Stat., of Repl., See Burns 1956 9- Ind. § 1603, I.C. 35-1-31-3. con- This Court has stated that a may testimony upon viction be based the of uncorroborated an accomplice. (1960), 96, Green State 241 Ind. 168 N. E. 2d v. 345. From time to time Court has made statements to testimony closely the that accomplice effect the anof must be scrutinized and State, received with See caution. Green supra; Kleihege (1934), State 206 206, Ind. 188 N. E. There be can doubt no as the wisdom of this observation. fact, might correctly In similar observations be made concern- ing many the of witnesses who have an obvious person subject litigation. interest in the or the matter is, however, improper It prov- a trial court to invade the jury by commenting ince of the competency of or weight given any be particular witness Taylor testifies who in a 664, case. v. State 257 Ind. 278 N. E. Ind. Dec. 225.
In Bohan v. State Ind. N. E. at page 239 this Court stated: “Whether an instruction a criminal erroneous case is invading province
as question credibility of the the as to the to be tested opinion whether court intimates its weight given testimony.” or witnesses be discussing specific question same Court in tes- timony in Adams Ind. provided stated that an instruction which N. specifically evidence of be re- is to weighed ceived and in the same manner ac- cording the same rules evidence of other witness general pattern long correct. of instructions used in this state and at bar followed instructs the credibility they judges of the witnesses are testimony. They weight to their are further accept determining they what evidence will that in instructed they into consideration they reject, take will what any, has in the result interest, if a witness relationship, testimony, trial, probability or her of his appear accused, any, other considerations as if such right They proper. state must also instructed that the are beyond guilt reasonable doubt. establish the a defendant *6 given were case Such instructions which this afford defense addressing ample opportunity jury the at the close counsel accomplice’s to interest the case call attention an of to accused, alleged to relationship and the and his with the may any call which counsel have elicited attention facts alleged might cross-examination which from the on State, supra, give credibility. In cause doubt Green v. page 102, following the Court, at made statement: closely accomplices be scruti- “The of should cautiously received, nized and called this matter should be considering to the attention of of trier facts in weight to be such evidence.” might interpreted statement as above Inasmuch province properly court can mean that the trial invade jury opinion imply to the that in the court’s of the believability susceptible an is not same out, witnesses, disapproved. pointed it As we have other is ability is well armed with to submit defense counsel witness, prejudice any in- probable bias certainly cluding accomplice. proper It for him to do questionable of an It is in this manner nature so. jury. accomplice’s testimony to a The trial to be submitted refusing province court was correct in invade giving appellant’s tendered Instruction No. granting claims the trial court erred in next The Emerson, separate defendant, trial Richard day the trial appellant’s posi- was to commence. It is tion that separate such a late motion for trial was timely filed, prejudiced and that he was for the reason that his upon defense assumption was based he together. Emerson However, would be tried a search record fails to disclose motion for continuance on part appellant. granting separate trials to co- defendants is within the sound discretion of the trial court. Ware v. State 704, 1 Ind. 189 N. E. 2d 306; Ind. Dec. certiorari denied 375 S. 934. trial U. granting court did separate not err in trial in this case. The trial court is affirmed.
Arterburn, C. JJ., concur; J. and Hunter and Prentice, De- J., Bruler, opinion. with dissents
Dissenting
Opinion
Indiana,
J.
I dissent.
In
it
law
is well-settled
DeBruler,
upon
convictions
be based
testi-
uncorroborated
mony
accomplice,
Green 241 Ind.
today
168 N.
rule until
in Indiana has
accomplices
closely
been that “the
should be
*7
cautiously received,
scrutinized and
matter
this
should
be called to the attention of the trier of facts in consider-
ing
weight
348;
to be
such evidence.” 241 Ind. at
Kleihege
(1934),
206,
v. State
206 Ind.
The of this rule resounds with out con- rights case, cern for the accused of the individual. The Green with deeply its obvious statement of the rule in area this history, entrenched in both reason proposi- stands for tion we will not allow an accused to be citizen convicted testimony j ury on the of an unless the is instructed proper judge on framework within which to the case. In our concern to insure a fair trial for accused in each our strong accomplice’s distrust toward the events, version along majority we, jurisdictions the vast other with in gives such a country, have fashioned rule which this a proper light, in their verdict be its so that justly delivered; anything less a fair denies considered and trial to the accused. drop safeguard on the
To a fair trial important this to concerning personal expressions basis that the Court credibility unfair, particular is confuse witnesses history question. cases relied and rationale of the rule in The majority’s the unfair- on for rule are all concerned with allowing adversely judge on ness inherent in to comment a testimony. Taylor (1972), 257 Ind. the accused’s own State v. 664, (1944), 222 relying State N. E. 2d Swanson v. on 239 Ind. Ind. E. 2d Alder State N. v. 716; Ind. E. Bohan State N. 323, relying 189 Ind. N. Hiatt similarity opinions opinions in between these they State, reflect supra, simply line of both Green right enlightened of an the same kind of interests interest It such an accused to a fair to see trial. is difficult opinion’s The ma- majority disposition of this matter. jority has, im- paragraphs, in several short eliminated portant safeguard with the uncor- who is faced accused “accomplice testimony and raised roborated crime” testimony disinterested status of this that of other witness. prosecu- key weapon
Accomplice has been many original fought in this battles tions centuries. credibility testimony, not the concerned area Wigmore, testify According competency at all. but competent be little there could once witness was declared comparative weigh quality attempt of dif- This ferent witnesses. was so because: time, had certain oath, in notions of dead “An good weight own; as oath was another oath. its one in, (they get thought) once the harm the witness Should done; weighing for there little com- would *8 276
parative quality struggle persons’ of the different oaths. was Wigmore, therefore made at threshold.” 7 EVI- DENCE, (3d 1940) 2056 ed. § However, in more recent times trend been to declare has and competent more classes of witnesses as and to allow credibility determine of such witnesses. As Supreme United States U. Court said Funk v. S. 371, quoting 212, U. S. 54 S. Benson S. Ct. U. U. S. 13 Ct. L. 991: S. Ed. “ theory ‘Indeed, the of was to admit to the common law only presumably hones, appreciating witness stand those sanctity oath, party an re- unaffected as the sult, courts were afraid temptations free from of interest. The jurors. intelligence trust But years wrought great change the last 50 have in these re- today tendency spects, enlarge is to the domain of competency, and to submit to the for their considera- credibility tion as to witness those matters justify were heretofore change ruled sufficient to exclusion. his This wrought legislation partially by has par- been ” tially by judicial construction.’ at 290 U. S. Although competent accomplices were declared wit- very early, quality type nesses always seriously questioned. Merely calling an testify competent meant, times, has never in modern equal should be credence to other wit- Supreme As the United nesses. Court States said Crawford speaking U. S. 212 U. S. S. Ct. when accomplice’s an testimony: ordinary “It is witness of be taken as
good prima generally case, testimony is character in a whose supposed contrary, facie On to be correct. ought sus- evidence of such a to be received with witness greatest very caution, picion, and with the care and ought passed upon not to be under the rules many governing In apparently other and credible witnesses. incompetent jurisdictions such a man is unless witness pardoned.” U. S. at he has been *9 (1952), U. S. recently Lee v. S. 343 in On U. And more 1270, the said: 96 Ed. court S. L. 72 Ct. accomplices, accessories, false informers, use of “The ‘dirty betrayals are busi- friends, or of other credibility. may questions To ex- of ness’ raise serious they latitude do, entitled to broad tent a defendant is that have the to probe credibility cross-examination
to instructions.” with issues submitted to careful (Emphasis added.) U. S. at 757. S., Judge Wisdom, Phelps 2d speaking U. 252 F. v. 1958), (5th spoke problem to as follows: Cir. testimony mark skeptical accomplice a of approach “A to pros- political justice. a fair From Crown administration of camp inquisitions, a before, ecutions, prison to recent
long history ing fraility governmental overreach- of human testimony. accomplice justifies for conviction distrust immunity helped send misplaced hope that Cobham’s for Raleigh hope with of tower is same level on peddler poor some narcotic or other wretch save his some laying skin ciate.” 252 F. close the entire blame a friend or asso- at 2d testimony of approach skeptical suspicious This simple accomplice a distrust springs more than an from activity. power State in criminal a witness involved accomplice, especially under one over the of an holds future immunity indictment, promises From awesome. charge leniency through promises or prosecution, bail), (e.g., sentence, promises special favors low accomplice’s currency pay for prosecution has valuable high (to testimony. price testimony is Where the of such so testimony justifiably pur- accomplice) we fear solely by pursuit of not be motivated truth. chased pointed Mangrella 86 N. aptly out in State As was v. Begyn 175, quoting Super. A. 2d J. v. 2d
34 N. J. 167 A. 161: having ‘accomplice’ ‘special inter- deal with the “We accepted assumption only because our law has est’ ‘already hope leniency witness enmeshed’ ... may falsely . . . involve another.” problems many Realization of these led the rule in has states that a conviction cannot be sustained on the of an 2d, alone. See 30 AM. JUR. § list of these states.
Thus,
accepted only
has been
with
proviso
extreme caution with the
the trier of fact
be made
suspicious
testimony,
aware
status of such
Davis,
U.
1971)
S. v.
(9th
; People
In the case accomplice before con- accept tained all the elements which lead us to such accomplice, with extreme caution. The indicted with the de- granted separate awaiting trial, fendant but a trial and still completely pinning exonerated himself while the blame appellant admitted that lied another. he previous in police, written statements to admitted that he grudge against bore a appellant, and admitted that his implicated former version offense greater death to far a extent than his final In such version. cautionary clearly case the instruction to the is called given my opinion. for and should have been in jury, juries, as all was instructed that the State had guilt proving beyond the burden of a reasonable doubt in order to sutain a conviction. Then the court went toon define general doubt, Surely as is the term reasonable custom. giving majority find no error thus would though doubt, phrase legal reasonable even definition of amplified commonly one which could be understood is a legal closing argument. setting of the Such a counsel framework within which province
usually considered to be an invasion Yet, province jury. I more of an see no invasion giving simple instruction which seeks of this legal proper only cast the case in its context. Reported in 280 N. 2d 621.
Note. — Lanigan George of Indiana M. Lanigan.
and Clara C. April Rehearing Filed denied June [No. 1972.] 671S151. *11 Attorney General, Carmody, Sendak, John T. Theodore L. Attorney Deputy General, appellant. for Robinson, Spencer, Frank Indianapolis, Robert E. appellee. judgment appeal is an from a ren- C. J. This
Arterburn, appellee- in an inverse condemnation action filed dered