Binder v. State

Indiana Supreme Court

Binder v. State

221 N.E.2d 886, 248 Ind. 30, 1966 Ind. LEXIS 438

CourtIndiana Supreme Court

DecidedDecember 21, 1966

Docket30,547

StatusPublished

Cited by10 cases

This text of 221 N.E.2d 886 (Binder v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Binder v. State, 221 N.E.2d 886, 248 Ind. 30, 1966 Ind. LEXIS 438 (Ind. 1966).

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Arterburn, C. J.

The defendant was charged with the crime of sodomy under Acts 1905, ch. 169, § 473, p. 584, being Burns’ Ind. Stat. Anno. § 10-4221 (1956 Repl.), and following a jury trial was convicted and sentenced accordingly, from which judgment the defendant below and appellant herein appeals.

There is only one specification in the motion for a new trial presented by appellant’s brief on appeal, namely, the overruling of appellant’s motion for a psychiatric examination of the State’s prosecuting witness, Susanna Lynne Eby, 15 years of age. This question has come before this Court previously and has been settled in Wedmore v. State (1957), 237 Ind. 212, 143 N. E. 2d 649. We stated that there is no statute in Indiana requiring the court to order a psychiatric examination of the witness and said:

“The prosecuting witness in this case being 17 years of age took the witness stand clothed with the presumption of competency and the burden of establishing the contrary was on the appellant—defendant.”

In that case the motion for psychiatric examination was made at the beginning of the trial. It was an attack upon the competency of the witness.

[32]*32[31]*31In the case before us, no such motion was made until the conclusion of the State’s case and after the witness in ques[32]*32tion had testified fully and upon cross-examination. Appellant’s motion was not timely filed and an objection as to the competency of a witness must be made before the witness is permitted to testify. The objecting party may not wait and hear the testimony and if the evidence is unfavorable, then object to the competency of the witness. Morgan v. State (1962), 243 Ind. 315, 185 N. E. 2d 15; Wedmore v. State (1957), 237 Ind. 212, 143 N. E. 2d 649.

On the issue of the right to a psychiatric examination in cases involving sex crimes, we have more recently reaffirmed our position taken in the Wedmore case, supra, by the opinion in Lamar v. State (1964), 245 Ind. 104, 195 N. E. 2d 98.

On the authority of the cases cited above, the judgment of the trial court is affirmed.

Myers and Rakestraw, JJ., concur. Jackson, J., dissents with opinion.

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Arterburn, C. J.

The defendant was charged with the crime of sodomy under Acts 1905, ch. 169, § 473, p. 584, being Burns’ Ind. Stat. Anno. § 10-4221 (1956 Repl.), and following a jury trial was convicted and sentenced accordingly, from which judgment the defendant below and appellant herein appeals.

There is only one specification in the motion for a new trial presented by appellant’s brief on appeal, namely, the overruling of appellant’s motion for a psychiatric examination of the State’s prosecuting witness, Susanna Lynne Eby, 15 years of age. This question has come before this Court previously and has been settled in Wedmore v. State (1957), 237 Ind. 212, 143 N. E. 2d 649. We stated that there is no statute in Indiana requiring the court to order a psychiatric examination of the witness and said:

“The prosecuting witness in this case being 17 years of age took the witness stand clothed with the presumption of competency and the burden of establishing the contrary was on the appellant—defendant.”

In that case the motion for psychiatric examination was made at the beginning of the trial. It was an attack upon the competency of the witness.

[32]*32[31]*31In the case before us, no such motion was made until the conclusion of the State’s case and after the witness in ques[32]*32tion had testified fully and upon cross-examination. Appellant’s motion was not timely filed and an objection as to the competency of a witness must be made before the witness is permitted to testify. The objecting party may not wait and hear the testimony and if the evidence is unfavorable, then object to the competency of the witness. Morgan v. State (1962), 243 Ind. 315, 185 N. E. 2d 15; Wedmore v. State (1957), 237 Ind. 212, 143 N. E. 2d 649.

On the issue of the right to a psychiatric examination in cases involving sex crimes, we have more recently reaffirmed our position taken in the Wedmore case, supra, by the opinion in Lamar v. State (1964), 245 Ind. 104, 195 N. E. 2d 98.

On the authority of the cases cited above, the judgment of the trial court is affirmed.

Myers and Rakestraw, JJ., concur. Jackson, J., dissents with opinion.

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221 N.E.2d 886, 248 Ind. 30, 1966 Ind. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/binder-v-state-ind-1966.

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