Burnett v. State

322 N.E.2d 125 (1975)

Michael B. BURNETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-174A15.

Court of Appeals of Indiana, Second District.

January 30, 1975.

Transfer Denied March 25, 1975.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION FOR REHEARING

BUCHANAN, Judge.

Burnett's Petition for Rehearing expresses discontent with our opinion handed down December 19, 1974 (Burnett v. State (1974), Ind. App., 319 N.E.2d 878) because we did not correctly resolve his contention that defense witnesses attending the Preliminary Hearing in Marion County Municipal Court should have been permitted to testify as to the testimony given by one Sherrie Slocum in that prior proceeding (and the alleged fact that she was at that time discharged).

In addition to the grounds stated in our decision, reexamination of the record reveals that this alleged error has been waived.

No offer of proof was made at any point in the proceedings either as to the content of the witnesses' testimony had they been permitted to testify, or as to what the transcript of the Municipal Court proceedings might reveal as to whether Sherrie Slocum was in fact discharged.

Indiana has long recognized the requirement of proffer if an appellant is alleging erroneous exclusion of evidence on appeal. As Justice Hunter stated in State v. Lonergan (1967), 252 Ind. 376, 378, 248 N.E.2d 352, 353:

"Thus the proper trial procedure dictates that an offer to prove must be *126 made following a trial court's ruling on objection. In such a case both the trial court and this court would then have been in a position to determine the admissibility and relevance of the testimony sought to be elicited. In VanSickle v. Kokomo Water Works Co. (1959), 239 Ind. 612, 158 N.E.2d 460, this court reaffirmed the rule that in order to preserve any question regarding the admission of evidence, the motion for new trial must set forth . . the question, the ruling and the offer to prove."

See also, Gradison v. State (1973), Ind., 300 N.E.2d 67; Marposon v. State (1972), Ind., 287 N.E.2d 857; Isenhour v. Speece (1958), 238 Ind. 293, 150 N.E.2d 749; State v. Quackenbush (1973), Ind. App., 303 N.E.2d 830; Cadick Milling Co. v. Valdosta Grocery Co. (1920), 72 Ind. App. 534, 126 N.E. 240; Lauter v. Duckworth (1897), 19 Ind. App. 535, 48 N.E. 864; McCormick, Law of Evidence, § 51, p. 110 (Second Ed. 1972).

Even had Burnett timely proffered to the trial court the content of the witnesses' testimony he failed to follow the basic requirement that proof be presented by the proponent that the "best evidence," i.e., the transcript of the Municipal Court proceedings, was not available (lost or destroyed) which would entitle him to present the next best evidence. See, Howe, et al. v. Fleming, et al. (1899), 123 Ind. 262, 263, 24 N.E. 238; American United Life Insurance Co. v. Peffley (1973), Ind. App., 306 N.E.2d 131; Eubanks v. Gulley (1932), 94 Ind. App. 650, 182 N.E. 95; Murray v. Buchanan (1845), 7 Blackf. 549.

Petition for Rehearing is accordingly denied.

SULLIVAN, P.J., and WHITE, J., concur.