*1
joined
employees
And,
were
if
even
such
their conduct.
pay such an
likely
award.
they
be unable
would
defendants
in the
case
than
usual
difficult
even more
Second,
be
it would
adequate
damages would
punitive
amount of
to estimate what
government,
consider
since
ly
unit of
punish
such a
and deter
inapplicable.
wrongdoer
be
would
of the
ation of
wealth
municipal
do
will
officials
Third,
it must
assumed
be
Finally,
wrongdoing employees.
duty
discipline
their
against
damages
allowed
punitive
were
if
be noted that
must
damages
group
protection
for whose
municipalities,
taxpayers, would
awarded,
purportedly
the citizens
were
burden of
group'
bear
the identical
who would
be
must
con
anomalous,
It
indeed.
result
award. Such a
damages
properly awárdable
punitive
cluded that
were
brought.
Similar
City
against
at
time
action was
1968),
ly
Springfield (Mo.
Chappell
City
423 S.W.
see:
v.
455;
1965),
810;
(Fla.
2d
City Miami
172 So.
Fisher v.
2d
Village
Deming
243 P. 2d
Brown
56 N.M.
v.
Authority (Me. 1973),
Turnpike
Foss Maine
609. See also:
v.
respects, punitive its award appellees, which award is reversed. part. part;
Affirmed reversed Staton, J., Garrard, P.J. and concur. Reported at N.E.2d
Note. — Indiana.
Levon State May Rehearing 28, 1976. 27, 1976. June denied 3-1175A254. Filed [No. September 22, Transfer denied 1976.] *2 Christakis, Lee J. Gary, appellant. . Sendak, Attorney General, Shu-
Theodore James N. L. maeker, General, appellee. Deputy Attorney charged robbery Appellant , Wilson was
Garrard, J. subsequently appeal theft. His chal- was convicted of lenges trial and the introduction certain evidence at asserts prosecution subjected he was because barred double jeopardy. the conviction. We affirm jeopardy following arises claim of double from the proceedings. The case was for trial called on March voir dire examination of jury commenced. At 3:30 afternoon, suggested defense counsel the court that he competent felt Wilson was not to stand trial. Pursuant to IC immediately appointed physi 35-5-3.1-1 the court two Hearing sanity during 1. “35-5-3.1-1. to determine defendant’s trial. any any at —When to the court or time before the final submission of criminal cause jury trying same, court, either from its own knowledge suggestion upon person, ground has reasonable report their instructed them to Wilson eians to examine Then, objection, possible. without findings quickly as as day parties jury. impanel The next proceeded to court instructions, commenced its preliminary state settled examining physicians reports of the when the in chief case that then determined Wilson presented. The court were mistrial. trial and Several competent to stand declared not charges after later, moved dismissal months health certified that he department mental had competent to stand trial. statutory proceed trial with- direction
In view com- delay out event determined Wilson was it error petent, for the court we do believe already proceed did, pres since the venire ent was made. and no Longstanding interpretation, applicable equally federal Constitution, I, 14 of the Indiana holds under Article Section *3 sponte by that a sua the court will mistrial declared prosecution subsequent a not a where there is bar necessity for or the action the ends of manifest justice Mooberry defeated. State would be otherwise v. (1973), App. 300 N.E.2d cases and cited 157 necessity is hold such manifest established where therein. We be introduced tinued the nature understand institution.” concerning thereon and make sufficient court shall order the defendant committed fix court shall find that shall examine the defendant shall find that delayed sanity ant. If health, a time for believing and shall on to be confined or to understand the continued on the the same at court shall the of the criminal the to ground the a proceedings appoint prove hearing defendant defendant his the by the the [find] two defense, defendant has to hearing. defendant’s ground upon to be and make determine has [2] action alleged insanity proceedings department competent comprehension the trial the the insane, At the against the question defendant the sanity his no alleged insanity in and make the court shall hearing, disinterested question defense, comprehension him and of the defendant. or of his sufficient to understand appropriate psychiatric not be has department insanity. other the trial sanity shall his the delayed the physicians comprehension evidence defense, If the immediately sufficient proceedings defendant’s and the of mental shall be or defend- testify If con- who the 30.0 during the trial that the defendant is incom- is determined
petent trial.2 to stand complains next of the introduction into evidence
Wilson
person.
testimony
The
knife
on his
found
disclosed that
recipient
poor
On
Wilson
relief.
Novem-
9, 1973, he
to the office of the
ber
went
Calumet
Township
discussing
prob-
he
Trustee. While
gave
employee, the trustee
lem with an
em
entered and
employee
ployee
paycheck.
left,
placed
her
The trustee
in her
Moments later
the check
when
interview
desk.
Wilson’s
concluded,
desk,
employee
he went around the
knocked
.the
chair,
paycheck.
employee
from her
took
called
caught
by
help
and Wilson was
subdued
em
struggle
During
ployees.
apprehension,
involved in his
attempted
police
to reach
his
Wilson
under
When
coat.
arrived,
question
Wilson was
and the knife
searched
piece
wrapped
newspaper
found
tucked
under his
trial,
behind his
At
waistband
back.3
knife was intro
objection.
in evidence over
duced
Wilson’s
state
en
the knife
titled to
was armed as
introduce
part
gestae.
(C.A.
of the res
Freeman
United States v.
7, 1953),
387;
2d
(1974),
Francis
State
F.
161 Ind.
App. 371,
416; see, also,
N.E.2d
v. State
Kiefer
Moreover,
169 N.E.2d
case
723.
Wilson’s
appear
introduction
the knife
would
to have contrib-
that an
It should also be noted
initial mistrial will not bar a
subsequent prosecution
sought
where the mistrial was
consented
by
most recent
doctrine,
accused. In its
consideration
of this
Supreme
applies
Court stated that
United States
the consent rule
even
though
apparent
the accused is confronted with an
“Hobson’s choice”
any showing
by
judge
in the absence
bad faith conduct
designed
prosecutor
to
prosecutions
to harass the accused
successive
prosecution
merely
opportunity
afford
more favorable
to convict.
*4
Dinitz
United States v.
424 U.S.
graphic, photographic or miniature correctly, accurately permanently copies, repro- copying reproducing forms a medium for duces original material, or other durable record on film dispose thereafter such business record.” photo- “Any photographic, photostatic or miniature copy reproduction deemed to graphic shall be *5 302 original purposes for record all and shall be treated as an original agencies record in all courts or for administrative purpose admissibility facsimile, of its in evidence. A exemplification or copy photographic certified of copy reproduction' shall, purposes, for all be deemed a facsimile, exemplification original copy or certified
record.” purposes “For of this act ‘busi- [34-3-15-1 34-3-15-3] — business, bank, ness’ shall profession, occupation industry, mean and include such calling every of kind.” primary permit The thrust of statute is to businesses original copies substitute copies may to records. Such originals. then be used as There evidence in the case qualifying us copy before the exhibit photographic, etc., as a by the maintained business under this statute. commonly stated, return then to
We made. As prohibits rule copy introduction a in evidence of a docu- writing ment or unless and until the absence of the is accounted on some reason than proponent. serious fault purpose The rule ensure “copy” to trustworthiness. In earlier times reproduction. only handmade It was amenable not and, deliberate falsification but scrivener’s error in some instances, a “sure” recollection which was in fact not sure at premised all. That the rule been has so and has had suffi- flexibility respond cient appli- circumstances its where may for, readily cation is uncalled be from our determined prior decisions.4 Surety Indiana, Mfg:
In Federal Union Co. etc. Co. 328, 1104, 95 N.E. the Court considered the admissibility copies one three prepared of an order on register.” “autographic Holding an the document admissible having for, without the others been accounted the Court stated: from We exclude our consideration here those cases -where the bearing original signature party- court described as
charged
they might
grounds.
distinguished
since
be
on those
single
slips
printed
mechan-
of the three
“Each
letterpress
impression. There is
distinction between
ical
writings
triplicate
produced as
writing,
copies doing
require
slip
controversy.
The
does
law
things.
unnecessary
slip
to the contractor
delivered
admitted,
exactly
slip
necessity
like the
regarded
original,
purpose
triplicate
and no useful
produc-
by requiring
a notice
subserved
would
tion of
slip
contractor.” 176
delivered
95 N.E.
Ry.
Pittsburgh,
similarly
C.C.
St. L.
ruled
&
Court
*6
625,
copy
11,
of
(1912),
Brown
a
Co.
98 N.E.
that
lading
accounting
dupli-
for
a bill of
was admissible without
original.
(The offering
party’s
shown
cate
strong,
lost.)
of the case are not
have been
the facts
as
While
language
by
the
the Court is:
chosen
means,
by
duplicates
produced
are
mechanical
“Where
duplicate originals
any
may
intro-
of them
all are
and
accounting
nonproduc-
in
for the
evidence without
duced
11, 30,
tion
the other.”
Town Closser 107 Ind. Frankton v. of Significantly, 20 N.E.2d 220. stated: (nor any made there effort to “No show) copy that the offered evidence carbon original. showing copy of the In the of such absence we by may fairly the type-written copies prepared infer that attorney copies originals duplicate carbon were they may ac- such be introduced in evidence without counting writing.” impressions for other [Cita- Parentheses for tions omitted. added clarification.] it that decisions be noted these all involved While simultaneously, importance produced fact copies that technology production. time of the Under is not times, it the assurance of e.g., trustworthiness. (2nd Ed.) On McCormick Evidence §§ Thus, points McCormick out advent modern technology good production facsimiles, in the reason excluding exists under rule unless there is authenticity might by raised some issue resolved requiring presentation original. McCormick, supra, p. connection, 569.5 In this it should also be noted that modern ability discovery greatly to secure of documents reduces injustice opportunity surprise through production at trial of thitherto undisclosed written exhibit. permit the Federal
Similarly, Rules Evidence now use accounting “original” duplicates without unless authenticity is in issue or be unfair would under circum- permit duplicate. stances to use of a Federal Rules Evi- dence, Rules 1001-1003. position by
We think the taken McCormick and the federal supported proper clearly by rules is the decisions of Supreme Appellate of this Court state. “duplicate” therefore
We hold that a of a document or writing by impres counterpart produced is a the same matrix, original, or from same sion as the *7 enlargements photography, including means of by mechanical, miniatures, or electronic or chemical reproduction equivalent technique accurately or other which reproduces original. duplicates Such are admissible in original genuine evidence to the same extent as an unless a authenticity original, issue is raised as to of the or under example, watermarks, types paper 5. For identification of genuineness. determining inks the other in used in the document aid its On hand, practice parties we also take the common of the note of moving permission court for to substitute the record original produced. practice once the ever has been While this retains what- guarantee original appears provides, of trustworthiness use of the it genuineness completeness formality to be a useless when not in are issue. language writings. applicable This tracks the to of the rule federal §1001(4). F.R.E. existing it would be unfair admit'the-du- circumstances original. qualification, By latter refer plicate as an we affecting primarily the trustworthiness to circumstances it duplicate purpose for the which is offered. Such fully might duplicate is not circumstances occur where original legible only portion the total document or where useful cross examin- is offered and the remainder would be ation, might offered, qualify portion or otherwise be opposing party. useful regarding question presented
In the no case before us contents, authenticity nor check its except rejection duplicate, reason advanced for ádmitting original. no it not the There was error duplicate. urges given finally by error in instructions two are to conclude that reviewable error court. We forced presented by of one of the in either assertion. No mention structions was made the motion to correct have errors. We transcript, examined and it not disclose what ob does jection, any, if was made to either instrüction at trial. 8(B), 59(G), 8.3(A) (7). CR. TR. AP. judgment is affirmed.
Staton, P.J., concurs; Hoffman, J., in result with concurs opinion.
Concurring Opinion agree J. I concur in result I since do not Hoffman, reasoning permitting photograph admission aof of a check into evidence. photograph of the check was admissible it since was
proved representation true purports be a of that it represent competent and it was evidence because the wit- testify give description ness could a verbal check. objeet The check stolen and have could been verbally (1941), Hawkins described witness. State 79; Highshew 219 Ind. 37 N.E.2d v. Kushto *8 306 App. 584, (transfer 505, denied, N.E.2d 555).
134 N.E.2d
Reported at
T. Johnson. Rehearing July 13, Filed June 1-775A126. denied [No. 1976.] George Matties, George Languell, Languell B. W. Matties, Spencer, appellant. Grosbach, Brazil, appellee. H.
Wallace
FACTS: survey J. In Criss desired west Lowdermilk, boundary and, property, pursuant line of her to IC (Burns Ed.), county 17-3-63-3 Code secured the services surveyor Johnson, and notified im- who was landowner mediately property. east of Criss’