Appelby v. State

Shake, J. The appellants were convicted on an indictment charging them and twenty-three others with resisting and obstructing peace officers by use of dangerous and deadly weapons. Errors are assigned upon the overruling of appellants’ motion to quash the indictment, motion in arrest of judgment, and motion for a new trial. Under the first two assignments it is contended that the indictment is insufficient to charge a public offense on account of its failure to allege that the peace officers were known by the appellants to be such. The statute upon which the prosecution was based is as follows: “Whoever shall forcibly assault, resist, oppose, obstruct, prevent, impede or interfere with any peace or police officer of this state, or any person assisting him, while such officer is arresting or *549 attempting -to arrest any person, or while such officer is engaged in the execution of any of the duties of such peace or police officer, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed one hundred dollars [$100] or imprisoned in the county jail or Indiana State Farm not more than six [6] months, or both; and whoever shall draw, use or attempt to use a firearm, deadly of dangerous weapon, or commit a bodily injury upon any peace or police officer of this state, or upon any person assisting such peace or police officer, while assaulting, resisting, opposing, obstructing, preventing, impeding or interfering with any peace or police officer, when such officer is arresting or attempting to arrest any person, or while such officer is engaged in the execution of any of the duties of such officer, shall be deemed guilty of a felony, and, upon conviction thereof, shall be imprisoned in the state prison for a period of one [1] year.” Acts 1929, ch. 101, §1, p. 310, § 10-1005, Burns’ 1942 Replacement, § 2525, Baldwin’s 1934. In charging a crime it is not necessary to allege guilty knowledge on the part of the defendant, unless such knowledge is an ingredient of the definition of the offense. State v. Freeman (1842), 6 Blackf. 248, 27 Am. Jur., Indictments and Informations, § 69, p. 632, 11 L. R. A. 191. Since the above statute does not embrace the element of knowledge it was not necessary to allege it. The indictment followed the language of the statute and that is sufficient. The appellants’ motion for a new trial occupies forty-five (45) of the six hundred sixty-eight (668) pages of their printed brief. Sixty-six (66) separate' and distinct legal propositions are presented for our determination. We cannot bring ourselves to believe that the framers of our State Constitution had any such situation in mind when they enjoined upon us the obligation to “give a statement in "writing *550 of each question arising in the record” (Article 7, Section 5), or when they imposed upon the General Assembly the duty to provide for “the speedy publication of the decisions” of this court (Article 7, Section 6). At the risk- of being charged with failing to meet our responsibilities, we feel obliged to limit our consideration of this case to what appear to be the principal contentions. We have pointed out in the past that one prejudicial error clearly presented is enough-to accomplish a reversal by this court. Weer v. State (1941), 219 Ind. 217, 36 N. E. (2d) 787, 37 N. E. (2d) 537. Complaint is made of the refusal of the trial'court to permit the jury to see an exhibition of a newsreel movie film depicting the scene at the commission of the alleged crime. When objection was made to the offer of this exhibit the court conducted a preliminary inquiry in chambers and out of the presence of the jury. The record' discloses that the film was excluded because its sequence and chronology had been destroyed by cutting and rearrangement. Still-life photographic prints made from the movie film were admitted, however. The law keeps pace with scientific advancement, and movie films have been recognized as possessing evidentiary value under proper circumstances. 129 A. L. R. 361. -A motion picture film is but a series of still photographs (32 C. J. S., Evidence, § 709) capable of being displayed so as to simulate action. The fact that the continuity of the film in controversy had been disturbed was enough to warrant its exclusion (15 Ind. Law Journal 408, 434), but this did not affect the probative value of the individual prints made therefrom, which were admitted. We think the court’s action was proper. *551 *550 During the course of the trial several of the appel *551 lants were identified by witnesses who did not know the names of the appellants. When these appellants were pointed out by the witnesses the court required them to stand where they could be seen by the jury. In one instance, after the prosecuting attorney had requested that a particular appellant, who had been so pointed out, might be required to stand, his counsel inquired, “Does the court require this defendant to state his name?”, to which the court replied, “That is correct.” Counsel for said appellant thereupon reserved an exception without interposing any objection or calling the court’s attention to the fact that an infringement of any constitutional guaranty was claimed. Under the circumstances, no question was saved with respect to this appellant being required to give testimony against himself. The provision of the Constitution upon which he now relies affords no protection that may not be waived. Spitler v. State of Indiana (1943), ante, p. 107, 46 N. E. (2d) 591. There was no impropriety on the part of the trial court in requiring the appellants to stand when they were pointed out by witnesses who did not know them by their names. In People v. Gardner (1894), 144 N. Y. 119, 38 N. E. 1003, it was observed: “It is the right of the prisoner to be in the presence and view of the jury, and it is the right of the prosecution to have him in view of the presiding judge and jury and the counsel engaged in the trial. And whether at any particular time he should stand up or sit down in the presence of the jury must be a matter resting in the discretion of the trial judge, and in no sense can it be said that by the exercise of such discretion his constitutional right is involved.” See, also, People v. Curran (1918), 286 Ill. 302, 121 N. E. 637; Panzich v. U. S. (1933), (CCA), 65 Fed. (2d) *552 550, and Jamerson v. U. S. (1933), (CCA), 66 F. (2d) 569, certiorari denied 290 U. S. 706, 78 L. Ed. 606, 54 S. Ct. 373. The appellants moved to set aside the submission of the cause on account of the alleged misconduct of the prosecuting attorney. It was charged that while the prosecutor was engaged in cross-examining a witness on the subject of the identity of the appellants, he held in his hands a collection of their photographs which bore what purported to be prison numbers, and manipulated ° these pictures in such a manner as to make them visible to the jury. This charge was denied by the prosecutor and his assistant, after which the appellants asked and obtained leave to substantiate their charge by the testimony of the court reporter. The reporter did not support the charge and in overruling the motion the judge said: “I was in some doubt until this testimony as to what had taken place, but you have convinced me by your examination of this witness that these pictures were not facing the jury.” This court will not disturb a finding of fact based upon conflicting evidence. On the state of the record we cannot say that it was error to- refuse to set aside the submission. On the occasion of the oral argument counsel for the appellants strongly urged that there was no competent evidence of the guilt of the appellant Theodore torek. With commendable candor the Attorney General has since conceded that this is true, and he has filed a confession of error as to said appellant. We have reviewed the evidence and find that it is sufficient to sustain the conviction of the other appellants. There is no merit in any of the other assigned errors. The judgment is reversed as to the appellant Theodore Lorek on the State’s confession of error, and the *553 Randolph Circuit Court is ordered to grant him a new trial. As to all the other appellants the judgment is affirmed. Note.—Reported in 48 N. E. (2d) 646.