A jury found appellant guilty of assault and battery upon Paul Burgess and fixed a penalty of a thousand dollars fine and six months imprisonment.
It appeared without contradiction that in connection with a strike automobiles were parked bumper to bumper at the entrance to the factory involved, so that it was impossible for persons seeking to enter the factory to do so without climbing over the automobiles. There was testimony that about 25 employees were present for the purpose of entering the factory to work, and that the sheriff of the county was there to assure them safe conduct across the picket line. *Page 398
Burgess was an employee desiring to enter the premises of his employer and was the first to undertake the climb across the line of obstructing cars. With the sheriff immediately behind 1. him, he stepped up on the touching bumpers of two cars and started across. There was not entire unanimity in the testimony of the witnesses, but all testified to facts amounting to the offense charged. The State's witnesses testified in effect that when appellant saw Burgess on the bumpers of the cars he came forward and struck Burgess in the chest and knocked him down. Appellant's witnesses testified in effect that when appellant saw Burgess climbing across the bumpers of the cars he came forward and pushed Burgess back into the arms of the sheriff who was immediately behind Burgess. No witness testified that any serious physical harm was done to Burgess, and that is argued by appellant, but he was kept from entering the plant where he was employed as he desired to do. The seriousness of an assault and battery is not always measured by the physical harm done. The purpose of an assault and battery is not always to inflict personal injury. The purpose and effect may be to deprive the victim of freedom of action and conduct, as was the case here, and in such cases the physical damage done does not measure the gravity of the offense.
In his motion for a new trial and in the brief before this court, appellant says that the evidence was insufficient to sustain the verdict. As we have already pointed out 2, 3. there was uncontradicted evidence that appellant struck or pushed Burgess as he attempted to enter the factory for work. Notwithstanding the evidence of striking and pushing, appellant's counsel in their brief in this court argued that no assault and battery was committed, "unless merely blocking *Page 399 the way against one who was pushed against him can constitute an offense." If from this we are to understand that counsel believes that where a strike is in progress the strikers in the course of picketing have the right by physical blocking and pushing to prevent others from crossing the line set up by the strikers then we cannot agree with him. The right to strike is the right to cease work and is unquestioned. In connection with the right to strike is the right peacefully to picket the premises of the employer against whom the strike is directed, and in the exercise of the constitutional right of free speech by argument and persuasion peacefully to induce others to join the strikers. But the right to strike and the right to picket do not include the right to block entrances and by force, or threats of force, deny other persons the right to go in or upon their own property or to enter the premises to which they have been invited, expressly or by implication. Carnegie-Illinois Steel v. U.S.W. of A. (1946), 353 Pa. 420, 426, 429, 45 A.2d 857.
Appellant, in his brief, says that "the gravamen of appellant's appeal rests upon the ground that appellant's rights, guaranteed to him by Sections 13 and 15 of Article I of the Constitution of Indiana were invaded."
Section 13 of Article I of the Indiana Constitution is as follows:
"In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor." *Page 400
Section 15 of the same Article is as follows:
"No person arrested, or confined in jail, shall be treated with unnecessary rigor."
None of the rights guaranteed by these sections was violated.
However, the appellant also later refers to § 16 of Article I as giving rights that were denied this appellant. Section 16 is as follows:
"Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense."
Appellant contends that rights under this section have been violated. He contends that the fine is excessive and the penalty is out of proportion to the offense committed. But the 4-7. fine and imprisonment imposed is within the statute governing the offense charged. That being true, this court cannot interfere on account of its severity. Lodyga andMantych v. State of Indiana (1932), 203 Ind. 494, 505,179 N.E. 542; Cox v. State of Indiana (1932), 203 Ind. 544, 557,177 N.E. 898; McCulley v. The State (1878), 62 Ind. 428;Miller v. The State (1898), 149 Ind. 607, 613, 49 N.E. 894. While fines and penalties should not be excessive, and must be proportioned to the nature of the offense, that does not mean that this court can set aside a conviction and sentence, within the statute, merely because on the record it may seem severe. It is the duty of the trial jury, on finding a defendant guilty of misdemeanor, to fix the penalty within the statute defining the offense. § 9-1819, Burns' 1933. If the statute under which this charge was laid is constitutional, then the punishment, being within the limits as fixed, is lawful and not contrary to § 16 of Article I of the Constitution of Indiana. *Page 401 Section 16 is a limitation on the acts of the legislature and not a limitation on the discretion of a jury acting within the framework of a statute. Miller v. The State, supra, at page 613. In the case before us the statute is not questioned nor is it claimed that the sentence exceeded the statutory limitations.
Appellant principally urges as grounds for reversal misconduct of the prosecuting attorney in the cross-examination of witnesses and in argument. No objection was made during the course of 8. the trial to the cross-examination referred to and no objection was made to the prosecutor's argument and no motion was made to set aside submission on account of either. Ordinarily failure to object to evidence or misconduct of counsel waives and cures any error in connection therewith. We are asked to ignore this rule and to consider whether there was such misconduct upon the part of the prosecutor and failure on the part of the judge and appellant's counsel as deprived appellant of his constitutional right to a fair trial.
The misconduct of the prosecutor claimed in connection with the cross-examination of witnesses consisted of questions the answers to which tended to show that the witnesses knew there was a war on, and knew that preventing employees from entering the factory retarded production of war material, but that the witnesses in effect placed their union and the strike ahead of war production. Some of the witnesses for the defendant went so far as to say that they did not care whether production of war material was retarded or not.
In argument to the jury the prosecutor referred with some bitterness to the strike and its effect upon war production and its effect upon the success of our military forces. 9, 10. This argument appears to have been directed not to the question of guilt but to *Page 402 the extent of the penalty. Appellant argues vigorously that the conduct of the prosecutor in the course of cross-examination and in argument deprived him of a fair trial by injecting collateral labor and war issues which prejudiced the court and jury and resulted in a trial not for assault and battery but, quoting from appellant's brief, "for being a member of a labor union, for being out on strike, for being in a picket line, for endeavoring to prevent other employes from entering the plant where he was employed." It seems to us that these enumerated collateral issues were inherent in the case and that the case could not have been tried without a disclosure to the jury of the above quoted facts which appellant claims are collateral, and we are not certain that the criticized cross-examination was improper, and if the cross-examination was not improper arguing the facts elicited by such cross-examination was not improper. It will be borne in mind that by statute the burden of fixing the penalty in this case was upon the jury. The right of a jury to hear evidence in aggravation or mitigation of an offense was discussed in the case of Kistler v. State (1876), 54 Ind. 400, 403, 404. In that case the defendant on trial of the cause offered to prove, in mitigation of punishment, the fact that he had already been in prison for the same offense for a period of 18 months. The court refused to permit him to make this proof and error in such refusal was alleged in this court. This court pointed out that under the old law when the trial court fixed the penalty it was entitled to have brought to its attention circumstances, whether in aggravation or in mitigation, which would help it in the exercise of its discretion in fixing the penalty. This court then applied the same principle to juries and held that juries, to guide them in fixing penalties, are entitled to *Page 403 hear testimony of mitigating or aggravating circumstances, and on page 404 said:
"In considering the question of the nature or the extent of the punishment, the juries are now fairly entitled to all the latitude which the courts have rightly exercised, in hearing evidence tending to enlighten them in the exercise of a sound judicial discretion."
This being true, we are unwilling to say that evidence of the effect of the strike upon war production is not included in the circumstances which the jury was entitled to consider in discharging its duty of fixing the penalty.
We further suggest that the trial court in its discretion has wide latitude in permitting cross-examination to test the credibility of a witness by disclosing his general 11. attitude toward the circumstances of the case, his interest, his motives, his prejudices, character and other influences which operate upon the mind, and only clear abuse of such discretion demands reversal. Lincoln v. State (1921),191 Ind. 426, 133 N.E. 351; Denny v. State (1921),190 Ind. 176, 129 N.E. 308; Craig, Exrx. v. Citizens Trust Company (1940), 217 Ind. 434, 451, 26 N.E.2d 1006; Perfect v.State (1925), 197 Ind. 401, 141 N.E. 52.
Appellant contends that a defendant in a criminal case is entitled to a fair trial before an impartial judge and a jury motivated only by proper considerations and to be 12, 13. represented by competent counsel, and that failure of his own counsel and misconduct of the judge and prosecutor which violate his constitutional right to such a trial may be raised in this court even though the proper and, ordinarily, necessary procedural objections have not been made. That, of course, is true, but injustice must be made clearly to appear, and appellate courts very properly have been *Page 404 slow to intervene in such cases. In this connection appellant has cited a number of cases from this and other jurisdictions. To discuss all the cases would unduly prolong this opinion. We may say, however, that with a single exception, no Indiana case cited was reversed for misconduct or failure of court or counsel when objection was not made at the trial. The exception is the case ofWilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848. In that case appellant's grounds for complaint were stated in the following language on page 66:
"His position may be summarized by the statement that appellant was deprived of fundamental rights guaranteed by our constitution in that he had merely a perfunctory representation by counsel in a trial before a judge who was not impartial but stepped out of his proper role on several occasions to assist in the prosecution and to convey to the jury his opinion that the appellant was not worthy of belief."
and in conclusion at page 83:
"When, as here, there has been such a lack of representation as to be equivalent to or worse than no representation whatsoever and as a result thereof the judge misused the opportunity thus given to impress upon the jury his view that the defendant was guilty and ought to be convicted, we are left with no alternative but to exercise the power that is in this court to remand the cause for such a trial as will not deny but will afford to the accused the protection guaranteed by our Bill of Rights and the Constitution of the United States."
No such situation is found in the case before us. Appellant had more than perfunctory representation. His attorney was of his own selection. By his own admission in his brief here, prepared by a new lawyer, his case was tried by "a lawyer of wide trial experience" whose reputation was "unimpeachable." Nine witnesses *Page 405 were called for defendant against five for the State. They were intelligently examined and the State's witnesses were intelligently cross-examined. The only fault found with his conduct of this case was his failure to object to the cross-examination and the argument of the prosecutor. What to do was a matter of judgment and discretion in the heat of a trial. He had a case where he could not rely on his client's innocence. He may have thought one or more or all the members of the jury would respond to the labor union angle, or he may have hoped that the prosecutor's methods would excite sympathy. Having elected to follow the course he did, his client can't wait for the result, and then complain.
In the case before us the judge did not, as in the Wilson case, step out of his proper role to convey to the jury that he thought the defendant guilty. One criticism of him is that he 14. should have voluntarily intervened during the prosecutor's cross-examination and argument. He was present. He knew the situation in a way that cannot be translated into a printed record. By overruling the motion for a new trial when these same questions were presented, he has said the defendant had a fair trial. For reasons already stated we cannot say he, with his better opportunity to judge, was wrong.
Appellant also questions three instructions given by the court. No objections to these instructions were made in accordance with the rules and no proposition or point in appellant's brief 15. was addressed to them. Criticism of them is tied into argument as to the fairness of the trial. In that connection we have considered them and don't believe they prejudiced the appellant.
For the foregoing reasons and because evidence of guilt of the offense charged is so perfectly clear, we *Page 406 are not disposed to reverse this case upon alleged errors to which no objection was made at the proper time.
Judgment affirmed.
Richman, J., dissents with opinion.
NOTE. — Reported in 67 N.E.2d 377.