Opinion
No. 27,946.
Filed April 19, 1944.
1. INDICTMENT AND AFFIDAVIT — Amendment — Name of Affiant Inserted — Effect of Count Not Substantially Changed. — The action of the court in permitting a count of an affidavit, which was properly signed and sworn to, to be amended by inserting the name of the affiant in the body thereof, was authorized by statute since such amendment did not substantially change the effect of the count. p. 436.
2. CRIMINAL LAW — Trial — Directed Verdict — Motion Sustained as to One Count and Overruled as to the Other — Subsequent Offer of Evidence — Waiver. — Where defendant's motion for a directed verdict, made at the conclusion of the State's evidence, was sustained as to the first count of the affidavit and overruled as to the second, defendant, by thereafter offering evidence, waived the motion as to the second count. p. 436.
3. WITNESSES — Competency — Husband and Wife — Criminal Prosecutions — Statute Not Making Spouse an Incompetent Witness Generally. — The statute which prohibits a spouse from disclosing confidential communications and information gained by reason of the marital relationship does not make the spouse an incompetent witness generally. p. 436.
4. WITNESSES — Competency — Husband and Wife — Criminal Prosecutions — Testimony Within Purview of Statute Excluded — Erroneous Admission of Evidence Not Shown. — Where accused's wife was permitted to testify against him in a criminal prosecution, but the court, in every instance in which a timely objection was made, excluded testimony offered by her which came within the purview of the statute prohibiting the disclosing of confidential communications and information gained by reason of the marital relationship, error in the admission of her testimony was not shown. p. 436.
5. CRIMINAL LAW — Appeal — Presentation in Lower Court of Grounds of Review — Motion for New Trial — Necessary Recitals Where Error Predicated on Admission or Rejection of Evidence. — When it is desired to predicate error upon the admission or rejection of testimony, the motion for new trial should set out the question and answer, if any, or the substance thereof, together with the objection and the ruling of the court with respect thereto. p. 436.
6. ROBBERY — Evidence — Sufficiency — Identification of Accused. — Evidence consisting of identification of accused by the prosecuting witness as the person who had robbed him of his purse containing more than $100 in currency, and testimony of the mother-in-law of accused that he admitted to her that he had knocked a "chump" in the head and had taken his money at the time and place charged in the affidavit, was sufficient to sustain a verdict of guilty of robbery. p. 437.
7. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Conflicting Evidence Not Weighed. — On appeal from conviction in a criminal prosecution, the Supreme Court cannot weigh conflicting evidence. p. 437.
From the Shelby Circuit Court; Harold G. Barger, Judge.
Rezy Edward Dwigans was convicted of robbery, and he appealed.
Affirmed.
Walter C. Reese, of Shelbyville, for appellant.
James A. Emmert, Attorney General, Frank Hamilton, First Assistant Attorney General, and Frank E. Coughlin, Deputy Attorney General, for the State.
The appellant was charged by an affidavit in two counts with having inflicted a personal injury upon another with a dangerous instrument while engaged in the commission of a robbery and with robbery proper. The prosecution was based upon § 6, ch. 148, Acts 1941, § 10-4101, Burns' 1942 Replacement, § 2416-1, Baldwin's Supp. 1941.
On motion of the prosecuting attorney, made before the beginning of the trial, the court permitted the second count of the affidavit, which was properly signed and sworn to, to 1. be amended by inserting the name of the affiant in the body thereof. This did not substantially change the effect of the count and the amendment was therefore authorized by § 9-1133, Burns' 1933, § 2132-1, Baldwin's Supp. 1935. Beller v. State (1883), 90 Ind. 448.
At the conclusion of the State's evidence the appellant made a motion for a directed verdict. The motion was sustained as to the first count and overruled as to the second. Thereafter, the 2. appellant offered evidence, thereby waiving the motion for a directed verdict as to the second count of the affidavit. Fausett v. State (1942), 219 Ind. 500, 39 N.E.2d 728. White v. State (1941), 219 Ind. 290, 37 N.E.2d 937.
It is claimed that the trial court erred in permitting the appellant's wife to testify against him, in violation of § 2-1714, Burns' 1933, § 303, Baldwin's 1934. This statute 3-5. does not make a husband or wife an incompetent witness generally. It merely prohibits a spouse from disclosing confidential communications and information gained by reason of the marital relationship. Smith v. State (1926), 198 Ind. 156, 152 N.E. 803. The record before us discloses that the trial court excluded the testimony offered by the appellant's wife which came within this rule, in every instance in which a timely objection was interposed. Besides, the appellant's motion for a new trial was insufficient to save this alleged error. The only assignment in the motion with respect to the wife's testimony was as follows:
"That the court erred in overruling the defendant's objection to the introduction of testimony of the wife of the defendant."
The established practice of this State requires that when it is desired to predicate error upon the admission or rejection of testimony, the motion for a new trial shall set out the question and answer, if there was one, or the substance thereof, together with the objection and the ruling of the court with respect thereto. Brown v. State (1939), 216 Ind. 106, 23 N.E.2d 267. Weer v. State (1941), 219 Ind. 217, 36 N.E.2d 787, 37 N.E.2d 537. The appellant made no attempt to comply with this rule.
The evidence sustains the verdict of guilty based on the second count. The prosecuting witness identified the appellant as the person who had robbed him of his purse containing more 6, 7. than $100 in currency. The mother-in-law of the appellant testified that he admitted to her that he had knocked a "chump" in the head and had taken his money at the time and place charged. The appellant offered proof of an alibi, but we cannot weigh conflicting evidence.
Judgment affirmed.
NOTE. — Reported in 54 N.E.2d 100.