Summary
concluding that “an inadvertent admission made by counsel in the heat of argument” was not a judicial admission
Summary of this case from Saylor v. StateOpinion
William C. Erbecker, James Manahan, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., David A. Arthur, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION FOR REHEARING
BUCHANAN, Judge.
The State of Indiana filed a Petition for Rehearing on September 13, 1977, to our decision in Collins v. State (1977), Ind.App., 366 N.E.2d 229, rendered August 25, 1977.
The State erroneously contends in its Petition that the case of State v. Sutton (1908), 170 Ind. 473, 84 N.E. 824, holds it need not be proved that an accused knows he is aiding an escaping prisoner.
This case merely holds that if the facts stated in the affidavit could give rise to an inference of guilty knowledge, for example, that the prisoner was clearly in the custody of a sheriff or policeman a motion to quash the affidavit should not be sustained.
By re-examining the record we have reinforced our conclusion that the State offered no proof that the defendant, Judith A. Collins, knew she was aiding escaping prisoners. The connection between Judith Beck whose name appeared on the prison visit logs and Judith A. Collins, the defendant, was never made by the State at Collins' trial.
Other than the inadvertent reference by counsel to Beck as Collins' brother, the only possible link between the two revealed in the record is a bail application in which the name Beck appears. However, this document was never introduced into evidence nor is there any indication in the record that the trial judge took judicial notice of it.
Petition for Rehearing denied.
WHITE, J., and ROBERTSON, C. J. (by designation), concur.