Hensley v. State

Givan, J.

The appellant was charged by affidavit in three Counts: 1, assault and battery with intent to commit rape; 2, commission of a crime while armed with a deadly weapon; and 3, kidnapping. Trial by jury resulted in a verdict of guilty of Counts 1 and 2 and not guilty on Count 3. Defendant was sentenced to the Indiana State Reformatory for the period of one to ten years on Count 1 and an additional year to be served consecutively on Count 2.

The record reveals the following facts:

The prosecuting witness, Diane Davis, testified that as she was driving along a public highway, the appellant, posing as a police officer, forced her automobile off the road, informed her that she had committed certain traffic violations and advised her that he was going to take her directly to the police station. After thus being forced into his automobile, she was taken to a secluded country road where appellant struck her with a police billy club he was carrying and attempted to have sexual relations with her.

During the trial of this cause the appellant took the witness stand in his own behalf. Over the objections of appellant’s attorneys the State was permitted to cross-examine the appellant concerning an alleged specific sexual attack upon one Wilma Conrich, which attack the appellant denied. Subsequently Wilma Conrich was called as a witness by the State and testified concerning certain, specific acts of misconduct by the appellant.

Among his allegations of error, the appellant claims the trial court erred in giving over his objection State’s Tendered Instruction No. 13, which reads as follows:

“When a defendant tenders his supposed good conduct in evidence as has been done in this case, he thereby invites scrutiny; and, disclosure of specific instances of his misconduct, if any, may be considered to depreciate the weight of the testimony of his witnesses,- on this subject, including himself, even though such evidence, if any, may incidentally impute to him other guilt.

“Further, in rebuttal, the State may show specific acts of bad moral conduct on the part of the defendant and such evidence, if any, goes to the weight to be given by you to the testimony of the defendant and his witnesses upon the subject of his conduct.”

Appellant also alleges the related error of allowing the prosecuting attorney over objection to cross-examine the appellant regarding specific acts of misconduct as above set out. A very similar situation was passed upon by this Court in the case of Woods v. State (1954), 233 Ind. 320, 119 N. E. 2d 558. After reciting a very similar set of facts to those in the case at bar the Court observed at page 325:

“. . . This was not an attempt by the State to prove other specific acts to show scheme, plan, intention or design which were held admissible in Kallas v. State (1949), 227 Ind. 103, 83 N. E. 2d 769, and if it had been offered for such purpose it should have been introduced by the State in its evidence in chief. The Prosecuting Attorney stated that such .testimony was ‘a matter of rebuttal, purely and simply rebutting the testimony of this defendant’s various character witnesses, to show what the moral character of this man is.’ 'Evidence of specific acts is not competent to prove general reputation.” (Citing authorities.)

When a defendant takes the witness stand, the State may cross-examine him concerning his credibility. However, in so doing the State is not permitted to inquire into specific acts of misconduct other than prior convictions. The question of what may be asked of a criminal defendant on cross-examination has been of considerable concern in many cases in Indiana. This Court in the case of Petro v. State (1933), 204 Ind. 401, 184 N. E. 710, felt it necessary to describe in some detail the reasoning for the rule which we are affirming here today. We feel that it is appropriate to quote at length from the Petro case, from pages 411 and 412, and reaffirm that principle of law:

“There seems to be some doubt as to the rule in this state on the admission of such evidence, but, when all the cases are analyzed, we are of the opinion that they are, with few exceptions, in harmony, and that they hold, where the question has been properly presented, that such question as above is not proper. And there is good reason for such holding. One of the instructions generally given, or at least should be given, in a criminal case to the jury is that the jury should not consider the affidavit or indictment in the case as evidence of guilt or innocence of the defendant, and it certainly would be erroneous for the court to instruct the jury that they could consider the mere fact that such affidavit or an indictment had been filed for the purpose of effecting the credibility of the defendant in case he testified. A man is presumed to be innocent until proven guilty beyond a reasonable doubt, and the mere fact that an indictment or affidavit has been filed is no evidence of his guilt. And the mere fact that a person has been arrested or a charge placed against him is no evidence of his guilt, and should not be the basis of a question to affect his credibility as a witness. If there has been an arrest or a charge (the word used in the question) and this followed by a conviction, then an entirely different question would be presented, and such evidence would be admissible as affecting the credibility of the witness.”

See also Ewbanks Indiana Criminal Law, Symmes Edition, §339 and authorities cited therein.

We, therefore, hold that it was reversible error for the trial court to permit the cross-examination of the defendant concerning prior specific acts of misconduct upon his part.

It was likewise reversible error for the court to give State’s Instruction No. 13.

The State has cited Wells v. State (1959), 239 Ind. 415, 429, 158 N. E. 2d 256, wherein it was stated that a defendant may be cross-examined regarding his unlawful conduct or convictions, if he has taken the witness stand and placed his credibility as a witness in issue. We overrule the statement in Wells that a defendant may be examined as to specific acts of unlawful conduct. The Wells case is correct only in that he may be examined as to prior convictions.

The trial court is therefore reversed. The cause is remanded with instructions to grant appellant’s motion for new trial.

DeBruler, Hunter and Prentice, JJ., concur; Arterburn, C. J., dissents with opinion.