Frick v. Bickel

57 N.E.2d 62, 222 Ind. 610, 1944 Ind. LEXIS 173

• Court: Indiana Supreme Court
• Decided: October 20, 1944
• Docket: No. 17,239. (Appellate Court.)
• Status: Published

Opinion

O’Malley, J.

In appellant’s petition to transfer, two causes are given, to-wit:

1. That the opinion, of the Appellate Court contravenes a ruling precedent of the Supreme Court • for the reason that the Appellate Court weighed the evidence.

2. That the opinion decides a new question of law erroneously when it states that evidence adduced on cross-examination to the effect that the witness made statements outside of court contrary to his statements on the witness stand, may not be considered as substantive' evidence and proof of the matter stated, but must be considered merely as impeaching the witness.

Under reason number one, no decision of this court is named and none can be named. The opinion does not hold that the Appellate Court may weigh or has weighed evidence on appeal. Furthermore, under our rules this claim raises no question for decision. Rule 2-23 (4) (a).

The second contention is directly answered in decisions of this court where it has been held repeatedly that impeaching evidence cannot be considered as proof of the facts in dispute between the parties. Allen et al. v. Davis (1885), 101 Ind. 187, The Ohio, etc., R. W. Co. v. Stein (1892), 133 Ind. 242, 31 N. E. 180, 32 N. E. 831, 19 L. R. A. 733; Sanger v. Bacon (1913), 180 Ind. 322, 101 N. E. 1001; Parker v. State (1925), 196 Ind. 534, 149 N. E. 5 9; Deppert v. State (1929), 200 Ind. 483, 164 N. E. 626.

No valid ground for transfer having been asserted, the petition is denied.

Note.—Reported in 57 N. E. (2d) 62.