Lineback v. State

301 N.E.2d 636 (1973)

Michael James LINEBACK, Appellant, v. STATE of Indiana, Appellee.

No. 1072S148.

Supreme Court of Indiana.

October 4, 1973.

*637 John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION FOR REHEARING

GIVAN, Justice.

The appellant has filed a petition for rehearing in which he alleges among other things that this Court failed to give an opinion in writing as to the question of whether it is proper for the prosecuting attorney to ask a character witness the following question: "Did you know that on the 23rd day of March, 1963, he (the appellant) was found to be an incorrigible juvenile?" Appellant takes the position that to allow such question would be in violation of the mandate set forth in Burns' Ind. Stat. Ann., (1972 Supp.), § 9-3215, IC XX-X-X-XX, the pertinent part of which provides as follows:

"... The disposition of a child or any evidence given in the court shall not be admissible as evidence against the child in any case or proceeding in any other court... ."

There is no question but what evidence of the disposition of a juvenile matter is not admissible in a subsequent prosecution in order to show a prior conviction to affect the credibility of the defendant as a witness. See Woodley v. State (1949), 227 Ind. 407, 86 N.E.2d 529. As stated in the Woodley case the disposition of a juvenile does not constitute a criminal conviction and cannot be used by the State as such in attacking the credibility of a defendant. However, an entirely different principle of law prevails when a defendant directly places his reputation in the community before the jury through character witnesses. As stated in our original opinion:

"When a defendant tenders his supposed good character in evidence, he thereby invites scrutiny and disclosure of specific instances of his misconduct to depreciate the weight of the testimony of his character witness, although the answers elicited may incidentally impute to him other guilt." Jordan v. State (1953), 232 Ind. 265, 268, 110 N.E.2d 751, 753.

Although juvenile matters are secret and the results thereof not open to public scrutiny as a general proposition, a defendant who places his reputation before the jury through character witnesses opens his entire life to scrutiny in order that the jury may determine whether the so-called character witness is, in fact, conversant with the defendant's reputation in the community about which he is purporting to testify.

*638 We, therefore, hold that the statement in the original opinion, Ind., 296 N.E.2d 788, applies to the juvenile matters as well as to all other prior conduct of the appellant.

Other matters raised in the petition for rehearing have been adequately dealt with in the original opinion.

ARTERBURN, C.J., and PRENTICE, J., concur.

DeBRULER, J., concurs in result with opinion.

HUNTER, J., dissents.

ON PETITION FOR REHEARING

DeBRULER, Justice (concurring in result).

I vote to deny rehearing. However, I cannot join in the majority opinion on rehearing written by Justice Givan. I vote to deny rehearing because the legal issue presented in appellant's petition for rehearing was not preserved for appeal by a timely and adequate objection at trial. Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865. I would resolve the issue in favor of appellant.

We are admonished by I.C. 1971, 31-5-7-2, being Burns § 9-3202, to construe the provisions of the juvenile statute liberally in order to further the purposes sought by it. Applying and construing the exclusionary rule erected by I.C. 1971, XX-X-X-XX, being Burns § 9-3215, in this manner, I would hold that this question is barred. The question posed to the witness was whether the witness had heard that the accused had been determined to be a juvenile delinquent. This question carries with it the clear implication that the accused was in fact found to be a juvenile delinquent. Questions which would naturally lead a jury into the zone of subject matter excluded from its consideration by this statute, should be prohibited by the trial court. This was such a question.