# Dobbs v. State

> Indiana Supreme Court · June 10, 1957 · 237 Ind. 119

URL: https://www.frixlaw.com/law-library/cases/9531388

## Case

- **Full name:** Dobbs v. State of Indiana
- **Court:** Indiana Supreme Court
- **Decided:** June 10, 1957
- **Citations:** 237 Ind. 119; 143 N.E.2d 99; 1957 Ind. LEXIS 255
- **Precedential status:** Published
- **Opinion:** Dissent by Emmert
- **Judges:** Bobbitt, Emmert
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9531388

## How later opinions describe it (automated extraction)

- holding voluntary intoxication may negate the malicious intent to kill required for second degree murder

## Opinion text

Dissenting Opinion
Emmert, J.
I believe it was reversible error to strike out. all the testimony of two witnesses for the appellant that his reputation for peace and quietude was good before the crime charged. In order to fully understand what was presented, the material parts of the testimony of the witness Fairchild, the State’s objection, and the court’s ruling thereon should be examined.
“ME. BENADUM:
“Q. Would you state now that you are generally acquainted with the reputation of the defendant in the community where he lived and resided, for peace and quietude?
A. I would say yes.
Q. You may state whether that reputation was good or bad.
A. I would say it was the best.”
“ ‘CEOSS EXAMINATION BY ME. HALL:
Q. I take it then you have known him quite a while?
A. Yes.
Q. And you regard him as a friend of yours?
A. Yes, I have known him quite well and he is a good friend.
*126 Q. Before this incident did you ever hear any conversation by anybody concerning his reputation for peace and quietude?
A. Before this incident?
Q. Yes.
A. You don’t hear too much about anybody, but everybody seemed to like him.
Q. Answer that question yes or no.
A. Yes.
Q. What was the occasion of your having heard that?
A. He was just a quiet man.
Q. What was the occasion, where were you when you heard somebody talking about his reputation for peace and quietude?
A. I am sorry, I am talking about after the incident.
Q. Before this incident?
A. No, not before.
Q. Did you ever hear any body talk about his reputation before this incident?
A. No, I had no reason to.
‘The State moves to strike out the testimony of this witness as being improper. The witness has given his personal and private opinion as to the reputation of the defendant, rather than general reputation.’ ”
THE COURT:
“ ‘Motion granted and the testimony of this witness is stricken from the record and the jury instructed to disregard the same.’ ”
The witness Jean Gladys Carpenter also testified that appellant’s reputation for peace and quietude was good, but that she never heard any discussion of appellant’s reputation prior to the incident. A similar motion to strike was made, which was granted by the court with instructions to the jury to disregard it.
Eight other witnesses testified appellant’s reputation *127 for peace and quietude was good. Of these, the witnesses Rucker and Watkins both stated they had never talked to anybody about his reputation for peace and quietude before the incident.
Evidence of a defendant’s good character is always admissible when he is charged with crime. Kistler v. State (1876), 54 Ind. 400 . This has been the established practice since before 1800. 1 Wigmore, Evidence (3rd Ed.), §56, p. 451. “The current rule is that good character must be considered in all cases if proved to the satisfaction of the jury.” Underhill, Criminal Evidence (3rd Ed.), §138, p. 177. When an accused is charged with murder his reputation for peace and quietude is relevant. Kahlenbeck v. State (1889), 119 Ind. 118 , 21 N. E. 460 . It may tend to disprove premeditation or malice, or both, as well as any criminal intent to do the act charged. 1
The fact that a reputation witness may testify he never heard the defendant’s character or reputation discussed is a real indication of good reputation. Kelley v. State (1936), 210 Ind. 380, 396, 397 , 3 N. E. 2d 65 . The fact the defendant’s reputation was never discussed is “often of the highest value.” Underhill, Criminal Evidence (3rd Ed.), §140, p. 181. See also 5 Wigmore, Evidence (3rd Ed.), §1614, p. 484. Reputation is something intangible, it cannot be seen, and often is not heard, yet the law recognizes its existence, its value, often beyond price, and affords protection for injury thereto. 2 The two witnesses were fully qualified and *128 competent to state in their opinion appellant’s reputation for peace and quietude was good, and it was prejudicial error for the court to sustain the improper objections made by the State, and to strike out their testimony and instruct the jury to disregard the same.
This is not a case where the court made a reasonable limitation on the number of reputation witnesses to be used by either or both parties. It is error to exclude evidence when there has been no limitation made as to the number of witnesses on the issue. State ex rel. Steigerwald v. Thomas (1887), 111 Ind. 515, 518 , 18 N. E. 35 . Moreover, the instructions to the jury cast discredit upon the weight and credibility to be given the testimony of the witnesses Rucker and Watkins, who both testified they had never heard anyone speak of the accused’s reputation. It violated his constitutional right to have the jury adjudge the facts under §19 of Article I of the Constitution. These oral instructions to the jury were just as prejudicial as giving an erroneous instruction at the conclusion of all the evidence, which could only be cured by withdrawing it. Beneks v. State (1935), 208 Ind. 317 , 196 N. E. 73 .
In Kelley v. State (1936), 210 Ind. 380, 396, 397 , 3 N. E. 2d 65 , supra, this court, in an opinion by Judge Treanor, held it was reversible error to refuse defendant’s requested instruction number 18, which “directed the jury to take the fact that the defendant’s reputation for peace and morality had not been discussed in his neighborhood as evidence that he bore a ‘general good reputation for peace and morality in the vicinities wherein he lived.’ ” It was just as much reversible error in the appeal at bar to strike out and instruct the jury to disregard the testimony of the witnesses Fairchild and Carpenter. The ruling affected the credibility to *129 be given four witnesses for appellant on a material issue.
Nor is this a case where the reputation sought to be proved was clearly established by other evidence, or was undisputed and unchallenged. No doubt the prosecuting attorney will be quite surprised to learn that he did not dispute appellant’s reputation for peace and quietude. Although in rebuttal he did not introduce reputation witnesses that appellant’s reputation was bad, his cross-examination was vigorous, and in every manner possible sought to place discredit upon the testimony of appellant’s reputation witnesses. Appeals here should not be determined by this court speculating on what the jury may have considered clearly established by disputed evidence.
Nor should this court take the position it is free to disregard material error in exclusion of evidence if the facts are otherwise established. Since 1935 it has been settled that §9-2320 refers only to matters of practice and procedure which do not go to the merits of the case. Beneks v. State (1935), 208 Ind. 317, 329 , 196 N. E. 73 , supra. 3 Any other rule does not make for equal *130 justice under the law, and makes liberty depend upon courts of men and not of law.
I would reverse the judgment.
Note. — Reported in 143 N. E. 2d 99 .
. “But, after all, so far as in criminal cases the criminal intent remains in issue, the good character of the defendant maybe regarded as always relevant to disprove it; and the better way seems to admit it.” 1 Wigmore, Evidence (3rd Ed.), §56, pp. 453, 454.
. “All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. . . .” Section 12, Article 1, Ind. Const.
. “It is true that the statute provides that, ‘in consideration of the questions which are presented upon an appeal, the court shall^ not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant.’ Section 2394, Burns’ 1926, §9-2320, Burns’ 1933, §2384, Baldwin’s 1934. This statute must be construed as having preference only to matters of practice and procedure, and to questions which do not go to the merits of the case. It was not intended to authorize this court to weigh the evidence and determine therefrom whether the jury would have reached the same verdict under proper instruction. A defendant is entitled to have the jury correctly instructed concerning the law. Any expression in the decisions which would seem to indicate that this court will consider the evidence in determining whether an erroneous instruction, involving the merits of the case, prejudiced the substantial rights of the defendant must be disregarded.” Beneks v. State (1935), 208 Ind. 317, 329 , 196 N. E. 73 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9531388. Public record. Not legal advice.