character error in Indiana

1996Kremer v. State (1987), Ind., 514 N.E.2d 1068 . *1303 Stowers v. State, 657 N.E.2d 194, 197-198 (Ind.Ct.App.1995), tram', denied.

1995Kremer v. State (1987), Ind., 514 N.E.2d 1068 .

1996Warriner, supra. Rather, in determining whether fundamental error has occurred, we consider the character of the error and its effect upon the trial as a whole.

1995Warriner, supra. Rather, in determining whether fundamental error has occurred, we consider the character of the error and its effect upon the trial as a whole.

1990Smith v. State (1984), Ind., 468 N.E.2d 512, 518 .

1988Smith v. State (1984), Ind., 468 N.E.2d 512, 518 .

1981First, we consider “the character of the error and its effect on the trial as a whole.” Grimes, supra, 170 Ind.App. at 534 , 353 N.E.2d at 507 .

1981First, we consider “the character of the error and its effect on the trial as a whole.” Grimes, supra, 170 Ind.App. at 534 , 353 N.E.2d at 507 .

1979The United States Court of Appeals for the Second Circuit, in refusing to review the admission of supposedly constitutionally inadmissible evidence because of a failure to timely object to its introduction below, stated that its power to review improperly raised errors would be restricted to errors which `seriously affect the fairness, integrity or public reputation of judicial proceedings.' United States v. Indiviglio (2d Cir. 1965), 352 F.2d 276, 280 .

1979The United States Court of Appeals for the Second Circuit, in refusing to review the admission of supposedly constitutionally inadmissible evidence because of a failure to timely object to its introduction below, stated that its power to review improperly raised errors would be restricted to errors which ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ United States v. Indiviglio (2d Cir. 1965), 352 F.2d 276, 280 .

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1912Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra. 8.

2014Id. at 859 .

2014Id.

1998Id.

1985See: Indiana Dept. of Public Welfare v. Clark (1985), Ind.App., 478 N.E.2d 699 .

1985Error is fundamental if it denies the defendant fundamental due process and is "so prejudicial to the rights of the Appellant that he could not have had a fair trial." 332 N.E.2d at 231 quoting Grier v. State (1968) 251 Ind. 214, 216-217 , 240 N.E.2d 494, 496 , We held in Winston that any error in the failure to exclude testimony concerning the contents of a package, itself excluded upon fourth amendment grounds, was not fundamental and, therefore, would not justify dispensing with the requirement that claimed error be preserved for appeal by timely, specific objection.

1985Error is fundamental if it denies the defendant fundamental due process and is "so prejudicial to the rights of the Appellant that he could not have had a fair trial." 332 N.E.2d at 231 quoting Grier v. State (1968) 251 Ind. 214, 216-217 , 240 N.E.2d 494, 496 , We held in Winston that any error in the failure to exclude testimony concerning the contents of a package, itself excluded upon fourth amendment grounds, was not fundamental and, therefore, would not justify dispensing with the requirement that claimed error be preserved for appeal by timely, specific objection.

1984Roberts v. State, (1981) Ind.App., 419 N.E.2d 803, 807 , citing Grimes v. State, (1976) 170 Ind.App. 525, 534 , 353 N.E.2d 500, 507 , reh. denied.

1984And most recently in Estate of Ballard v. Ballard, (1982) Ind.App., 434 N.E.2d 136 , this Court followed the pronouncements of both Winney and Hiatt by focusing upon the totality of the pleadings and relief sought to determine the character of the claim.

1982As Judge Lybrook said in Winney, supra, at 664 , “the critical distinction to be made, as stated in Hiatt , is the character of the claim itself — that being either equitable or legal.” The court in Winney , guided by the pronouncements in Hiatt , determined the character of the claim by focusing on the totality of the pleadings and relief sought. *141 Count two alleges that the terms of the contract permit cancellation of the contract and repossession of the real estate upon Ballard’s failure to make contract payments, insure improvements and pay insurance premiums.

1982As stated in Skendzel v. Marshall, (1973) 261 Ind. 226, 231 , 301 N.E.2d 641 : “Forfeitures are generally disfavored by the law.

1982As stated in Skendzel v. Marshall, (1973) 261 Ind. 226, 231 , 301 N.E.2d 641 : “Forfeitures are generally disfavored by the law.

1979The cases in which ‘fundamental error’ has been recognized in the trial judge’s unfair conduct towards the defendant, see, e. g., Ford v. State, supra, [(1967), 248 Ind. 438 , 229 N.E.2d 634 ], Wilson v. State, supra, [(1943), 222 Ind. 63 , 51 N.E.2d 848 ], substantiate our inference as to the character of error which will be considered ‘fundamental’.

1979The cases in which ‘fundamental error’ has been recognized in the trial judge’s unfair conduct towards the defendant, see, e. g., Ford v. State, supra, [(1967), 248 Ind. 438 , 229 N.E.2d 634 ], Wilson v. State, supra, [(1943), 222 Ind. 63 , 51 N.E.2d 848 ], substantiate our inference as to the character of error which will be considered ‘fundamental’.

1979The cases in which ‘fundamental error’ has been recognized in the trial judge’s unfair conduct towards the defendant, see, e. g., Ford v. State, supra, [(1967), 248 Ind. 438 , 229 N.E.2d 634 ], Wilson v. State, supra, [(1943), 222 Ind. 63 , 51 N.E.2d 848 ], substantiate our inference as to the character of error which will be considered ‘fundamental’.

1979The cases in which ‘fundamental error’ has been recognized in the trial judge’s unfair conduct towards the defendant, see, e. g., Ford v. State, supra, [(1967), 248 Ind. 438 , 229 N.E.2d 634 ], Wilson v. State, supra, [(1943), 222 Ind. 63 , 51 N.E.2d 848 ], substantiate our inference as to the character of error which will be considered ‘fundamental’.

1977It follows that the particular defense being made may not be singled out, criticized, or commented on beyond a statement of the law applicable thereto. [T]his instruction does not contain a statement of the law, but is rather a gratuitous comment of the court upon the character of the defense being made.” 259 Ind. at 265 , 286 N.E.2d at 408 .

1977It follows that the particular defense being made may not be singled out, criticized, or commented on beyond a statement of the law applicable thereto. [T]his instruction does not contain a statement of the law, but is rather a gratuitous comment of the court upon the character of the defense being made.” 259 Ind. at 265 , 286 N.E.2d at 408 .

1976Fundamental error “pervades the climate of the pro *535 ceedings below, viewed as a whole, depriving the defendant of any realistic opportunity for a fair hearing.” 332 N.E.2d at 232 .

1963If the jury have, from a consideration of the evidence, a reasonable doubt as to whether the defendant was at the alleged place when and where the alleged crime was committed, if any was committed, then the defendant should be acquitted.” As this Court stated in Thompson v. State (1944), 223 Ind. 39, 44 , 58 N. E. 2d 112, 113 , in which an instruction as to alibi was refused: .“If :by adding the word ‘legitimate’ the defendant meant thereby to place special emphasis on this - particular defense, the request was improper, while if it did not qualify or emphasize the character of the defense, it

1963If the jury have, from a consideration of the evidence, a reasonable doubt as to whether the defendant was at the alleged place when and where the alleged crime was committed, if any was committed, then the defendant should be acquitted.” As this Court stated in Thompson v. State (1944), 223 Ind. 39, 44 , 58 N. E. 2d 112, 113 , in which an instruction as to alibi was refused: .“If :by adding the word ‘legitimate’ the defendant meant thereby to place special emphasis on this - particular defense, the request was improper, while if it did not qualify or emphasize the character of the defense, it

1927There was no evidence of any usage or custom fixing the time of payment under circumstances of the character stated and the rule announced in the case of Grisham v. Lee, 61 Kans. 533 , 60 Pac. 312 , is applicable: ‘If there is a single hiring, and the term of service of the employee, and, also, the time when his compensation shall become due are not fixed by agreement or under *532 standing, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of the evidence of a general custom or usage, may be deemed continuous, a

1927There was no evidence of any usage or custom fixing the time of payment under circumstances of the character stated and the rule announced in the case of Grisham v. Lee, 61 Kans. 533 , 60 Pac. 312 , is applicable: ‘If there is a single hiring, and the term of service of the employee, and, also, the time when his compensation shall become due are not fixed by agreement or under *532 standing, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of the evidence of a general custom or usage, may be deemed continuous, a

1922Cobbey, Replevin §448; 34 Cyc 1411; Wimbrow v. Morris (1912), 118 Md. 91 , 84 Atl. 238 , 47 L.

1922Cobbey, Replevin §448; 34 Cyc 1411; Wimbrow v. Morris (1912), 118 Md. 91 , 84 Atl. 238 , 47 L.

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1919Redman v. Gould (1845), 7 Blackf. 361 ; Swope v. Paul, supra.” In Shellhouse v. Field (1912), 49 Ind. App. 659 , 97 N. E. 940 , the eourt said: “In an action of this char acter, the complaint must allege that the plaintiff had, at the time of the alleged conversion, either a general or special ownership of the property converted. * * * In an action to recover the value of personal property converted, the title thereto is always in issue.” The Supreme Court, in Waters v. Delagrange (1915), 183 Ind. 497 , 109 N. E. 758 , said: “In an action of this character the complaint must show by direct all

1914With regard to repeals of this character the rule is thus clearly expressed in Board, etc. v. Garty (1903), 161 Ind. 464 , 469: “It is a familiar rule, and one universally affirmed by the authorities, that a repeal by implication is not favored.

1912Where a pleading is challenged for the first time on appeal “all intendments are in favor of the pleading, and if there is not a total failure to state some essential ele- ■ ment of the rights of recovery, and the complaint states facts sufficient to bar another suit for the same cause of action, the verdict cures all other defects, and the complaint will be held sufficient to sustain the judgment.” Olivar Typewriter Co. v. Vance (1911), 48 Ind. App. 21 , 95 N. E. 327 , and cases cited. 5.

1912Where a pleading is challenged for the first time on appeal “all intendments are in favor of the pleading, and if there is not a total failure to state some essential ele- ■ ment of the rights of recovery, and the complaint states facts sufficient to bar another suit for the same cause of action, the verdict cures all other defects, and the complaint will be held sufficient to sustain the judgment.” Olivar Typewriter Co. v. Vance (1911), 48 Ind. App. 21 , 95 N. E. 327 , and cases cited. 5.