*1 totally incompatible an invocation condition,— privilege physician-patient as to privilege given legal upon which the basis Wigmore ably described has most premised. Dean inconsistency: resulting ‘* * * essential bringing an action which physical ailment should existence of of the a waiver is the issue con- privilege for all communications * *’ * cerning that ailment. * * * which own, an act does party-patient, of his aWhere protected otherwise condition require of a disclosure will longer basis be a appear to no disclosure, would there rele- suppress selectively party to allow con- specific to the same pertaining medical evidence vant * * *” dition. correctly opinion that court
It is our testify. Brockman Dr. allowed Judgment affirmed. Lybrook, J.,
Robertson, concur. P.J. Indiana. Donald Wain Webster Rehearing May denied 1-872A50. Filed March [No. September 4, Transfer denied 1973.] *2 Nasser, Haute, appellant. of Terre for Woodrow S. Wilson, Sendak, General, Wesley Attorney T. L. Theodore General, appellee. Attorney Deputy (Webster) defendant-appellant Robertson, P.J. conviction, trial, IC appealing after a bench (Burns 1956). 35-13-4-6, Ind. Ann. Stat. He §10-4101 years Indiana State accordingly to 10 to 25 in the sentenced Reformatory. specification denied
Webster’s first states he was error *3 judge. prejudice a fair trial of on of trial because the the jury had record that after been discloses the selected The original date, an the trial and the State reached Webster agreement by polygraph whereby take a test Webster would against charge passed If test him would Webster the the right a test would waive his If he failed the he dismissed. agreement jury test full was trial. the made Webster’s knowledge rights fully proposal. understood the and he polygraph the test. failed knowing judge,
It is Webster’s contention that trial the polygraph test, prejudiced Webster’s failure was evinced, by knowledge. prejudice such This was maintains, rulings disregarding evidentiary and the portions contends further certain the evidence. com- prejudice until after that he was not aware of such court, when, according to trial mencement before change judge. for a it was too late move CR. fact opinion that after Webster’s We are allegation prejudice to warrant a is not sufficient case, facts of this reversal under the because: findings judge “Rulings a and made course judicial not in themselves sufficient reasons proceedings are judge personal prejudice believe has a bias or against party.” Amick, or Cir., U.S. at v. F.2d allegation next Webster’s of error is directed to sustaining objection court made the State on cross Dove, of Bennett examination the victim of robbery. Mr. testifying Dove was as to the identification pic- of Webster’s group ture from submitted him hospital in the he while injuries recuperating during robbery. inflicted attorney pictures Webster’s asked Dove if the submitted him contained a mixture of white colored people, ifor pictures all of persons. were of colored ob- State then jected on basis that already Dove had answered the question. responded: counsel “Well, this is examination, your cross Honor, think and I trying what we are to do is at arrive the condition of his mind at that way time because testifying he is he’s now terribly obviously or illustrated some lack of memory either present inability at the at time looking time of at the
pictures.” (Webster’s replied that counsel) The court already had gotten objection into area sustained the made the State. applicable argument
The rule of law to Webster’s is: “ * * The trial court in its discretion has wide latitude *4 permitting credibility to cross-examination test of a by disclosing general witness toward his attitude case, interest, the circumstances of the his his motives, prejudices, his in character and other mind, operate upon only fluences which clear abuse and ours). (Emphasis discretion demands reversal.’ such 394, 377, (1946), v. 224 cert. Blue State Ind. 67 N.E.2d 1947, 840, 976, 91 denied 330 67 S.Ct. L.Ed. Our U.S. 1286. same, review, attitude, should whether the error on rejection of cross-examina admission or claimed is the tion. appear, Error, any, clearly as we to if must are slow (1973), 259 Ind. Brooks v. State in such cases.” intervene 678, 559, at 291 560. N.E.2d 514
Additionally, it has been held: rigorously right “Unquestionally the defendant had the however, purpose stated, witness for cross-examine the is, extent, permitted great that a will be
cross-examination
within the
discretion of
v.
sound
court. Rariden
689,
(1961), 242 Ind.
evidence nor resolve but look to the most will favorable to the State sup reasonable inferences therefrom which and the jury. Washington port of the trial court verdict v. State 888; 40, (1971), (1971), N.E.2d Davis 257 Ind. 271 v. State 893; 46, Grimm (1970), 271 N.E.2d Ind. 257 Ind. 254 407; Sharp 150, (1970), 260 N.E.2d v. 593; N.E.2d Smith v. N.E.2d summary testimony reveals A of Dove’s that he his received military disability October, check on the first of He check, leaving to a corner to cash the all but went store $20 storekeeper keeping. shopping with the safe He did some retiring home, to bed at then returned about 11 P.M. having Thereafter was awakened man he astraddle demanding beating face, the arms and him chest money Dove cut know was. testified where *5 upon by razor and beat skillet. The assailant alternated be- searching returning tween about the house and Dove couple demanding times, forcefully the know money. apparently passed the Dove came out and when he neighbor’s to went to the house. Assistance in the form policemen billfold, ambulance was called. Dove’s portion unspent §20, contained the the was taken in identifying robbery. picture also Dove testified as to hospital. in the while he was
Other witnesses that attacker testified Dove described his prior being police hospital. police taken apprehended away blocks Webster several within an hour being of the incident. notified
Dove testified that days also Webster was at his two house girl. They before a white house, came into remained then several minutes and left. sub-arguments
The two raised Webster under a claim sufficiency (1) of error to the evidence, directed are: finding guilty the court erred Dove’s based (2) testimony; and the court abused its discretion con- sidering testimony days that was at Dove’s two house robbery. prior recognizing
Webster, the heretofore cited rule that can- we weigh nor the credibility determine wintesses, discrepancies points testimony out seven argues, and then in substance Mr. Dove that dis- these crepancies fatal to do not are We con- share in the case. by Webster. drawn clusion Baynard
As held m N.E. argument goes made 2d to the weight of testimony province which is in trier fact. argument subscribe to Dove’s Nor can we it was lent alone convicted Webster. Other witnesses *6 testimony. support portions of his where Even conflicting re is trier of fact is still weigh quired Black v. State the evidence. See 487, N.E.2d (1971), 256 Ind. aptly argues, Dove never wavered from
As the State a beat robbed him “unless had position that and twin brother”. sufficiency second contention on the evi- of the testimony attacks admission certain
dence of Deborah Lovett, she house who testified that and went got guy pension (Dove’s) of who “this first” [of White, present (Charles who was in home Dove’s month]. visit, testified that it who at the time of the was not Webster question Lovett). testimony The raised about this was probative it substantial evidence of is is whether value. questioned materiality relevancy of not or this was during the trial. Lee v.
Webster cites us to argument. authority supporting as this N.E.2d In case, supra, Prentice, addressing in Lee Justice himself argument, said: similar
“Admitting arguendo, testimony, the inconsistencies in the go only credibility such would undermine the credibility Their witnesses. has been determined jury (Citing and will not be here disturbed. authorities).” 286 at N.E.2d defining part: robbery in reads The statute value years trust “Whoever takes from the franchised and on conviction shall Ann. nor more violence profit Stat. § and rendered than 10-4101 or any twenty-five putting determinate incapable (Burns imprisoned person 1956) fear, of another [25] period.” holding years, less than guilty any IC any and be 35-13-4-6, article ten [10] office dis- taken, prove money (a) failed to says: currency Dove; (b) that United States any, belonged to if charged the sum was taken as affidavit; $6.00 (c) prove State failed person from taken possession of Dove at the time the assault him.
Dove testified:
“Q. anything Did he you? ever take
A. Billfold.
Q. any money And did have in it? Yes, very
A. but little.
[*] [*] [*] [*] [*] Q. anything Dove, Mr. you if person what did robbed who ? take *7 MyA. billfold.
Q. anything Was there in the billfold ? Beg your ? pardon
A. Q. anything in the billfold? Was there A. Yes sir.
Q. what? And money.” of and a little bit
A. Identification prove charged The failure State the $6.00 in affidavit is not error, reversible has for it been held: specification utterly Ap- of error is without “Said merit. charged
pellants and convicted were under Burns Stat. Ann. provides: 10-4101 § person any another ‘Whoever takes of article putting fear, or of guilty violence in of value robbery * * (Emphasis supplied) statute, thing particular taken the value Under (1970), 260 509, 254 Adams Ind. immaterial.” is N.E.2d 878, at 883. prove necessary ownership, only posses but not It was an element to constitute part of Dove on the sion (1971), 589, State 275 N.E.2d Jackson v. thing was taken from 538, value or protection. presence personal personal Davis’ 518 (1969), also: 246 N.E.2d Ind. See
Smith v. N.E.2d v. Jackson dispose opinion cases the above the further We are failure allegations predicated of error of Webster’s because the State did of the court find prove prima $6.00 for a failure facie case make taken from Dove. its discretion trial court abused next contends regarding finding guilty on in a based erred fingerprints. testimony on skillet,
blood, a and a lack of broken dealing fingerprints, properly In lack of or more with the investigating fingerprints officers to look for failure crime, we note that at the scene of the pro investigatory as
such could be termed deficient police, is not a cedure on but warranting significant legal argument a reversal in this case. police officers testified about Four blood house and a broken skillet blood it which Dove’s cross examination was found the kitchen. On which, capable counsel an answer from them extracted substance, tests demonstrated that there were no made appre- Webster, ascertain substance to when be blood. *8 hended, what his The was asked show hands. officers saw blood, opinion, in both their of his hands. proving essential ele- evidence is not material in an charge proving the of of as it would ment be robbery. inflicting injury offense of the commission robbery. connecting It is material Webster with the Dove given by ex- officers, prior because Other perience, they qualified testify demonstrated were that go weight given answers would to the was blood. Other supra, Black, supra. Baynard, supra, Lee, their evidence. argument a common most Webster’s Pervasive thought quote represented by a from Vuncannon v. strain of 258 N.E.2d reads: appears “It that this lacks us directness and uncertainty, qualities evi- freedom from dence which substantive probative of a mere value must have. A scintilla enough. beyond Proof a reason- evidence is not able must be N.E.2d, doubt.” at met its review of record indicates the burden Our proof in this case. opinion, foregoing can- As can seen all of the we assign ruling Webster’s not error to of the trial court on motion to correct errors.
Judgment affirmed. JJ., Lybrook,
Lowdermilk and concur. Rehearing. On Petition For May 30, [Filed 1973.] Rehearing for Rorertson, P.J. Petition cor- rectly opinion portion observes that to discuss a failed argument regarding prejudice of his on the judge judge in that could had heard Dove state identify opinion Webster as assailant. are We test, contention, polygraph like falls under the case, swpra. Amick rehearing
Petition denied. JJ., Lybrook,
Lowdermilk and concur.