Opinion
No. 29,205.
Filed April 4, 1955.
1. TRIAL — Motion for New Trial — Appeal — Motion for Directed Verdict — Introduction of Evidence by Defendant After Motion for Directed Verdict Overruled. — Error, if any, resulting from the overruling of defendant's motion for directed verdict at the conclusion of the State's evidence was waived by defendant by the fact that he thereafter introduced evidence in his defense. p. 195.
2. TRIAL — Evidence — Failure to Object — Admission — Appeal — No Question Reserved. — Where exhibits were admitted without objection, no question is reserved for the consideration of the Supreme Court. p. 195.
3. APPEAL — Trial — Motion for New Trial — "Verdict Was Contrary to Law" — Evidence — Ballistics Expert — Qualifications — Failure to Object to Admission of Testimony and Exhibits. — The Supreme Court, on examination of testimony regarding a police officer's qualifications as a ballistics expert, concludes that he was an expert upon the subject of his testimony and in relating the gun to the bullet recovered from decedent's body and further no question as to his qualification was reserved by appellant as no objections were made to the admission of his testimony and exhibits. p. 195.
4. TRIAL — Motion for New Trial — "Verdict Sustained by Sufficient Evidence" — Murder — Evidence. — The evidence is sufficient to sustain a verdict of guilty of murder in the second degree where the evidence most favorable to the verdict evinces that defendant, after an argument, crossed the street to his automobile and obtained a gun from it and chased the deceased into a hallway where defendant shot deceased who died a few minutes later at the point where he was felled. p. 196.
5. TRIAL — Motion for New Trial — "Verdict Contrary to Law" — Free Expression of Juror Disputed — Affidavit in Motion for New Trial — Affidavit of Juror Cannot Be Used to Impeach a Verdict. — Defendant's contention that the verdict was contrary to law for the reason that the verdict of one of the jurors was not the free expression of his opinion as to the guilt of defendant must fail as: (a) the affidavit is ambiguous and in contradiction of facts recited in the transcript; (b) it does not assert any fact of corruption, intimidation or any other irregularity affecting the jury and (c) the rule is clear that an affidavit of a juror cannot be used to impeach the verdict. p. 196.
From the Marion Criminal Court, Division No. 2, Robert S. Smith, Special Judge.
Appellant, Fred White, was indicted for murder in the second degree, tried by jury and found guilty as charged. Appellant appeals.
Affirmed.
Robert D. Symmes, of Indianapolis, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling and Thomas M. Crowdus, Deputy Attorneys General, for appellee.
Appellant was indicted for murder in the second degree. He was tried by jury and found guilty as charged. The court pronounced judgment upon the verdict, sentencing appellant to the Indiana State Prison for life.
The error assigned is the overruling of his amended motion for new trial. The grounds asserted in the motion for new trial and relied upon for reversal are as follows:
(1) "The court erred in refusing the defendant motion for directed verdict.
(2) That the court erred in admitting in evidence the gun and bullet which had not been connected with the body of John C. Duncan.
(3) That the verdict of the jury is contrary to law.
(4) That the verdict of the jury is not sustained by sufficient evidence.
(5) That the defendant herein attached the affidavit of Albert Davis one of the jurors in the entitled cause and same is made a part of the defendant's motion for a new trial hereof and marked Exhibit A."
We entertain considerable doubt as to whether appellant in the preparation of his brief has made a "good faith effort" to comply with Rule 2-17 (e) and (f) of this court. However, we have elected to assert that doubt in favor of appellant, and to consider the appeal on its merits. We will, therefore, consider appellant's contentions in the order above presented:
(1) Error, if any, resulting from the overruling of appellant's motion for a directed verdict at the conclusion of the State's evidence was waived by appellant by the fact that he 1. thereafter introduced evidence in his defense. Fausett v. State (1942), 219 Ind. 500, 502, 39 N.E.2d 728.
(2) Appellant admits (and the record shows) that 2. said exhibits were admitted without objection. Therefore, no question was reserved.
(3) The appellant contends that "the verdict was contrary to law" for the reason that a police officer who testified as a ballistics expert, relating the gun to the bullet recovered 3. from decedent's body, was not qualified as an expert and that the admission of both his opinion testimony and the bullets as exhibits was reversible error. However, appellant's contention is without foundation. On examination of the testimony regarding the officer's qualification, we conclude that he was qualified to testify as an expert upon the subject of his testimony. Furthermore, no objection was made to the admission of his testimony and exhibits. Therefore, no question as to his qualification was reserved.
(4) Was the verdict sustained by sufficient evidence? The evidence most favorable to the verdict shows that after an altercation in a poolroom on Senate Avenue in the City of 4. Indianapolis, the appellant ran across the street and obtained a gun out of his automobile, that the deceased ran around a building into a hallway where he was followed by appellant who shot him there while he was holding his hands above his head and begging for mercy. The deceased died a few minutes after the shooting at the point where he was felled.
(5) Finally, appellant contends that the verdict was contrary to law for the reason that the verdict of one of the jurors, Albert Davis, was not the "free expression" of his opinion 5. as to the guilt of the appellant, as established by his affidavit submitted on motion for new trial. Appellant's contention upon this issue does not provide cause for reversible error for three reasons: (a) The affidavit is ambiguous and in direct contradiction to the facts recited in the transcript; (b) it does not assert any fact of corruption, intimidation, suppression or any other irregularity as affecting the jury, and, finally, (c) the rule is well settled that an affidavit of a juror cannot be used to impeach the verdict (but may be used to support it). Flanagan, Wiltrout Hamilton's Indiana Trial and Appellate Practice, § 1681, ch. 21, p. 326, Comment 7.
Judgment is therefore affirmed.
NOTE. — Reported in 125 N.E.2d 442.