Polson v. State

207 N.E.2d 638, 246 Ind. 674, 1965 Ind. LEXIS 414

• Court: Indiana Supreme Court
• Decided: June 10, 1965
• Docket: 30,548
• Status: Published

Opinions

Landis, J.

Appellant appeals from the judgment rendered on the verdict of the jury convicting him of sodomy for which he was fined in the sum of $100.00 and imprisoned two to fourteen years in the Indiana State Prison. Error is assigned on the overruling of motion for new trial.

Appellant first complains on this appeal that the court erred in overruling his objection to a leading question asked on direct examination by the State. However, there is no showing by appellant in the motion for new trial that this question was ever answered by the witness. In order, for prejudicial error to be committed in the overruling of an objection to a leading question, it would be necessary that such question be answered by the witness. In view of the failure of appellant to show in the motion for new trial that such question was answered by the witness there is no question here presented. See: Henderson v. State (1956), 235 Ind. 132, 134, 131 N. E. 2d 326, 327, (cert. den.) 351 U. S. 958, 100 L. ed. 1480, 76 S. Ct. 855; Ray v. State (1954), 233 Ind. 495, 499, 120 N. E. 2d 176, 178, 121 N. E. 2d 732; F. W. & H., Indiana Trial and Appellate Pract., §1812, p. 388.

Appellant further contends error was committed by the trial court in admonishing appellant's counsel during the cross-examination of Jerry Heaton, Viz: “. . . you are to cease from that line of questioning.”

While there is considerable doubt that appellant has properly brought before us a ruling of the trial court so that we may review it on appeal, if we overlook such procedural defects or omissions, it appears that appellant is complaining of the sustaining by the trial court of objections to three questions asked by appellant’s counsel on cross-examination. They were:

“Q. . . . have you done it [unnatural acts] with , other men?

“Q. Are you a.little behind in school?

“Q. Did your Daddy tell you that was alright to have sex relations with other little girls?”

We are unable to conclude the court committed error. The first question inquiring of the witness as to unnatural acts with other men could properly have been held by the trial court to be objectionable in our judgment, as the general rule is a witness cannot be impeached by attempting to show specific acts of immorality. Griffith, v. The State (1895), 140 Ind. 163, 166, 39 N. E. 440, 441; Bessette v. The State (1885), 101 Ind. 85, 88. It would have been proper of course, as affecting the witness's credibility to show on cross-examination that his general moral character was not good. The extent of cross-examination is a matter within the trial court’s sound discretion, and we do not believe under the facts of this case appellant brought himself within any exception to the rule as would warrant us in concluding such discretion was abused.

As to the second question as to whether the witness was behind in school, appellant has made no argument as to its relevancy. In view of the trial court’s wide area of discretion as to the extent of cross-examination, we do not see that it was here so abused as to warrant reversal of the judgment.

The third question asking what the father had told the witness obviously called for a hearsay answer, and therefore the court committed no error in sustaining the objection to it.

We find no reversible error.

Judgment affirmed.

Myers, J., concurs; Arterburn, J., concurs in result; Achor, J., concurs with opinion; Jackson, C. J., dissents without opinion.