Coleman v. State

• Decision Date: 27 September 1887
• Citation: 13 N.E. 100,111 Ind. 563
• Parties: Coleman v. State.
• Court: Indiana Supreme Court

111 Ind. 563

13 N.E. 100

Coleman

v.State.

Supreme Court of Indiana.

September 27, 1887.

Appeal from circuit court, Jasper county.

Edwin P. Hammond and Mordecai & Chilcote, for appellant. L. T. Michener and R. W. Marshall, for appellee.

Mitchell, J.

Coleman was tried in the Jasper circuit court, and sentenced to two years' imprisonment, for having feloniously assaulted one Ida Ream, with intent to commit a rape upon her person. The error assigned brings before us the propriety of the ruling of the court in overruling the appellant's motion for a new trial. As the learned counsel for the appellant suggest, the case is somewhat peculiar, in that the person upon whom the injury is alleged to have been committed does not appear to have been examined as a witness. It is, however, beyond successful dispute, that the verdict is well supported by other competent evidence. It may be inferred from the record that the state sought, without success, to obtain a continuance on account of the absence of the prosecutrix. That the appellant, without right, invaded the room in which the prosecutrix was pursuing her work as chamber-maid, and that he made an indecent proposal to, and perpetrated an unlawful assault upon her, is scarcely denied. There was testimony to the effect that he was seen violently struggling with the girl, thrusting one hand under her garments, the other one about her neck, while with his hand he tried to cover her mouth, so as to prevent her from making outcry. Her resistance and outcries attracted the attention of others, one of whom witnessed the parties in the struggle, and whose presence when observed, caused the appellant to desist. The girl left the room crying. That the appellant's purposes in intruding into the room were lecherous is not denied, and it is not at all surprising that the jury refused to adopt the theory that what he did was merely with a view to persuade the prosecutrix to yield to his lustful passion. There was an unlawful assault upon the prosecutrix, who resisted from the beginning, and made outcry. The jury drew the inference, as well they might, from the evidence, that the assault was made with the felonious intent to have carnal knowledge of the girl, by force and against her will, if it became necessary to the accomplishment of his purpose that force should be employed. We cannot disturb the finding on the evidence.

It appears from a bill of exceptions that, in making the opening statement of the case, the prosecutor used the following language in addressing the jury: “You should watch the evidence closely. We do not know that the defendant will go upon the stand. He has not been sworn. I noticed that. If he should go upon the stand, you should watch-” At this point counsel for the defendant objected, and excepted to the statement so made. The court sustained the objection, whereupon the prosecutor said: “Very well, under the ruling of the court, I will suspend further remarks on that subject, and I withdraw the statement from the jury.” The bill of exceptions also recites, and the record shows, that the defendant subsequently testified as a witness in his own behalf. For the appellant it is contended, with much force and plausibility, that in using the language above set out the prosecutor was guilty of such misconduct as constituted incurable error, which was not waived, notwithstanding the defendant proceeded to the end of the trial without further objection, and without exception to any adverse decision of the court involving the alleged misconduct of the prosecuting attorney. Section 1798, Rev. St. 1881, provides, among other things, that a defendant in a criminal case shall be a competent witness, and that, if he “do not testify, his failure to do so shall not be commented upon, or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same;” and it is made the duty of the court “in such case, in its charge, to instruct the jury as to their duty under the provisions of this section.” Much has been and much more might be said concerning the policy of statutes under which defendants in criminal cases are admitted to testify as witnesses. Upon that subject, however, it is not necessary that we should enlarge. The objectionable remarks of the prosecuting attorney, although made in his opening statement to the jury, and therefore not directly controlled by the rulings in Long v. State, 56 Ind. 182, and Showalter v. State, 84 Ind. 562, and although not within the literal prohibition of the statute, were nevertheless in palpable violation of its spirit and purpose. Surely, if the failure of the defendant to testify is not to be a subject of comment, or may not be referred to in the argument of the cause, nor commented upon or referred to or considered by the jury, the prosecutor may not evade the statute by ingeniously injecting into his opening statement remarks which do all the mischief which the prohibitory part of the statute was intended to prevent. The effect of the remarks must have been either to coerce the defendant to testify, as has been said, “with a halter about his neck,” or to induce him to remain silent, with knowledge that the jury had been challenged in the outset to...