Per Curiam
Defendant was indicted for theft and found guilty as charged. Evidence introduced at the trial reveals that the defendant concealed a man’s sweater in her dress and that she left Shoppers Fair Discount Department Store of Indianapolis without paying for the sweater. A witness to the theft, Willie Wells, testified that he saw Doris Owens in the dress department of the store and that he saw her put a man’s sweater underneath her clothing. He watched her until she went to the front of the store and then he called a security officer. The store’s security officer, Michael Beaver, testified that he followed the defendant out of the store and asked her if she had anything that she had failed to pay for as she came through the store’s check-out counter. The witness testified that the defendant answered, “Yes, I have this blouse.” Thereafter, she was placed under arrest.
Defendant first argues that during the trial, the judge followed a persistent course of judcial misconduct, over repeated objections, with results that were demeaning to the court, the judiciary, and the bar, and which were contrary to law. For example, the following colloquy took place during the trial between the court and the opposing counsel:
[695]*695“THE COURT: State ought to raise this fellow Beaver’s salary. Are you still with them? Here I was going to try to raise your salary, you did such a good job here.
MR. CARTER: State will recall Mr. Wells.
THE COURT: Come on, Mr. Carter. You’ve had all week to prepare this case.
MR. CARTER: I understand that, but we thought we would try the other case first, your Honor.
THE COURT: We can’t try the other case first this is an earlier number.
MR. CARTER: As you may understand, we have some problems.
THE COURT: I don’t see why. You’ve got so many witnesses in the courtroom. You have no problem. All you got to do is use your own little head a little bit.
MR. CARTER: That’s right.
THE COURT: You’ve got two beautiful girls sitting in front of you that can answer all of your questions.
MR. CARTER: That’s right, they’re in the other case, that’s why they’re sitting there.
THE COURT: No, they’re not. Just use your head, sir.” The court at another point felt it necessary to assist the Prosecutor in getting the value of a sweater into evidence during direct examination of Willie Wells:
“Q. Can you read the tag on that sweater ?
MR. RYAN: To which we object.
THE COURT: Objection sustained. Object if he knows the value of it.
Q. Do you know the value of it ?
MR. RYAN: To which we object.
A. $8.99.
THE COURT: Let the answer go out. Do you know the value of it ?
A. Yes.
THE COURT: He knows the value, now ask him.
Q. What is the value of that sweater ?
MR. RYAN: I’m going to object.
[696]*696A. $8.99.
MR. RYAN: I want to ask a preliminary question.
THE COURT: Over-ruled. Authority Wilson vs. State. Supreme Court says when a Judge sees an inept lawyer, such as the Prosecutor, he should help him.
MR. RYAN: Yes, but he’s got a witness that’s talking out of his mouth and doesn’t know what he’s talking about. . .
THE COURT: No.
MR. RYAN: And doesn’t know what he’s talking about and being lead by . . .
THE COURT: Over-ruled. Authority Wilson verses State, about 220 Indiana.”
Concerning the defendant’s taking the witness stand, the Court stated:
“MR. CARTER: Your Honor, I’m going to object. These questions are all leading.
THE COURT: Over-ruled. You ought to be thankful he put her on.”
We do not commend such running commentaries by a judge who is clothed with the robe and behind the bench, with all the perogatives adhering to such an office, particularly when they are made against a young attorney and one who is unable to retaliate in kind. Tolerance and understanding are much more worthy judicial attitudes under the circumstances.
Initially, we point out that the trial was conducted without a jury and that therefore any remarks made by the judge in the course of the trial could not be said to have prejudiced the defendant’s case in the minds of legally untrained triers of fact. The basic issue is whether defendant received a fair and impartial trial. Defendant contends she received a hearing punctuated with quips and running commentary, judicial intrusion, and premature resolution of the most vital issue of fact. We point out, however, that the trial judge in actuality was critical of the prosecuting attorney. No evidence is apparent that defendant received an [697]*697unfair trial by reason of certain comments by the judge, though we would question the propriety of some of the statements. The evidence was conclusive that the defendant was guilty of shoplifting from the store.
Defendant next claims that there was a fatal variance between the specific allegations of stolen property which appeared in the indictment and the proof made at trial in that the indictment alleged the theft of one blouse, two pairs of men’s pants, and three men’s sweaters. Evidence of the theft of one of the men’s sweaters was introduced in court. Since the theft of just one sweater would be sufficient for a conviction of theft, no further proof was necessary.
A certificate from the Secretary of State established that Shoppers Fair Discount Department Store of Indianapolis existed as of July 4, 1967. The theft occurred August 16, 1967. Since witnesses Willie Wells and Michael Beaver both testified that they worked for Shoppers Fair on August 16, 1967, the existence of the store on that date is recognized. Willie Wells further testified that the sweater taken by the defendant was from the Shoppers Fair Discount Department Store. This is sufficient to prove the allegation in the indictment that the property was in the possession of Shoppers Fair Discount Department Store. Thomason v. State (1970), 255 Ind. 326, 263 N. E. 2d 725.
Officer Beaver stated at the trial that he apprehended the defendant just outside the doors of the store. Before advising her of her constitutional rights, Officer Beaver proceeded to ask the defendant if she had anything in her possession that she failed to pay for at the counter. The defendant pulled out a blouse from her purse and said that she had not paid for it. We can only conclude that this testimony was properly admitted. Miranda v. Arizona
Free access — add to your briefcase to read the full text and ask questions with AI
Per Curiam
Defendant was indicted for theft and found guilty as charged. Evidence introduced at the trial reveals that the defendant concealed a man’s sweater in her dress and that she left Shoppers Fair Discount Department Store of Indianapolis without paying for the sweater. A witness to the theft, Willie Wells, testified that he saw Doris Owens in the dress department of the store and that he saw her put a man’s sweater underneath her clothing. He watched her until she went to the front of the store and then he called a security officer. The store’s security officer, Michael Beaver, testified that he followed the defendant out of the store and asked her if she had anything that she had failed to pay for as she came through the store’s check-out counter. The witness testified that the defendant answered, “Yes, I have this blouse.” Thereafter, she was placed under arrest.
Defendant first argues that during the trial, the judge followed a persistent course of judcial misconduct, over repeated objections, with results that were demeaning to the court, the judiciary, and the bar, and which were contrary to law. For example, the following colloquy took place during the trial between the court and the opposing counsel:
[695]*695“THE COURT: State ought to raise this fellow Beaver’s salary. Are you still with them? Here I was going to try to raise your salary, you did such a good job here.
MR. CARTER: State will recall Mr. Wells.
THE COURT: Come on, Mr. Carter. You’ve had all week to prepare this case.
MR. CARTER: I understand that, but we thought we would try the other case first, your Honor.
THE COURT: We can’t try the other case first this is an earlier number.
MR. CARTER: As you may understand, we have some problems.
THE COURT: I don’t see why. You’ve got so many witnesses in the courtroom. You have no problem. All you got to do is use your own little head a little bit.
MR. CARTER: That’s right.
THE COURT: You’ve got two beautiful girls sitting in front of you that can answer all of your questions.
MR. CARTER: That’s right, they’re in the other case, that’s why they’re sitting there.
THE COURT: No, they’re not. Just use your head, sir.” The court at another point felt it necessary to assist the Prosecutor in getting the value of a sweater into evidence during direct examination of Willie Wells:
“Q. Can you read the tag on that sweater ?
MR. RYAN: To which we object.
THE COURT: Objection sustained. Object if he knows the value of it.
Q. Do you know the value of it ?
MR. RYAN: To which we object.
A. $8.99.
THE COURT: Let the answer go out. Do you know the value of it ?
A. Yes.
THE COURT: He knows the value, now ask him.
Q. What is the value of that sweater ?
MR. RYAN: I’m going to object.
[696]*696A. $8.99.
MR. RYAN: I want to ask a preliminary question.
THE COURT: Over-ruled. Authority Wilson vs. State. Supreme Court says when a Judge sees an inept lawyer, such as the Prosecutor, he should help him.
MR. RYAN: Yes, but he’s got a witness that’s talking out of his mouth and doesn’t know what he’s talking about. . .
THE COURT: No.
MR. RYAN: And doesn’t know what he’s talking about and being lead by . . .
THE COURT: Over-ruled. Authority Wilson verses State, about 220 Indiana.”
Concerning the defendant’s taking the witness stand, the Court stated:
“MR. CARTER: Your Honor, I’m going to object. These questions are all leading.
THE COURT: Over-ruled. You ought to be thankful he put her on.”
We do not commend such running commentaries by a judge who is clothed with the robe and behind the bench, with all the perogatives adhering to such an office, particularly when they are made against a young attorney and one who is unable to retaliate in kind. Tolerance and understanding are much more worthy judicial attitudes under the circumstances.
Initially, we point out that the trial was conducted without a jury and that therefore any remarks made by the judge in the course of the trial could not be said to have prejudiced the defendant’s case in the minds of legally untrained triers of fact. The basic issue is whether defendant received a fair and impartial trial. Defendant contends she received a hearing punctuated with quips and running commentary, judicial intrusion, and premature resolution of the most vital issue of fact. We point out, however, that the trial judge in actuality was critical of the prosecuting attorney. No evidence is apparent that defendant received an [697]*697unfair trial by reason of certain comments by the judge, though we would question the propriety of some of the statements. The evidence was conclusive that the defendant was guilty of shoplifting from the store.
Defendant next claims that there was a fatal variance between the specific allegations of stolen property which appeared in the indictment and the proof made at trial in that the indictment alleged the theft of one blouse, two pairs of men’s pants, and three men’s sweaters. Evidence of the theft of one of the men’s sweaters was introduced in court. Since the theft of just one sweater would be sufficient for a conviction of theft, no further proof was necessary.
A certificate from the Secretary of State established that Shoppers Fair Discount Department Store of Indianapolis existed as of July 4, 1967. The theft occurred August 16, 1967. Since witnesses Willie Wells and Michael Beaver both testified that they worked for Shoppers Fair on August 16, 1967, the existence of the store on that date is recognized. Willie Wells further testified that the sweater taken by the defendant was from the Shoppers Fair Discount Department Store. This is sufficient to prove the allegation in the indictment that the property was in the possession of Shoppers Fair Discount Department Store. Thomason v. State (1970), 255 Ind. 326, 263 N. E. 2d 725.
Officer Beaver stated at the trial that he apprehended the defendant just outside the doors of the store. Before advising her of her constitutional rights, Officer Beaver proceeded to ask the defendant if she had anything in her possession that she failed to pay for at the counter. The defendant pulled out a blouse from her purse and said that she had not paid for it. We can only conclude that this testimony was properly admitted. Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 requires that warnings be given before the onset of questioning if the situation is one of “custodial interrogation”. In the case before us, defendant was merely [698]*698asked a question that in fact could have cleared up an inadvertent mistake. Miranda says:
“General on-the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” Miranda v. Arizona (1966), 384 U. S. 436, 477, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725.
The Miranda warning was given after the store manager indicated to the security officer that he would prosecute, the warning not having been necessary prior to that time.
Judgment affirmed.
DeBruler, J., concurs in result with opinion, in which Prentice, J., concurs.