Weaver v. State

Citation187 N.E.2d 485,243 Ind. 560,1 Ind.Dec. 56
Decision Date05 February 1963
Docket NumberNo. 30195,30195
PartiesJohn Thomas WEAVER, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

J. Bayne Burton, Anderson, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Judge.

This is an appeal by the appellant who was convicted of a charge of rape on Carol Harrison, a female child of the age of 5 1/2 years. The questions on appeal resolve themselves into two main contentions: first, whether the venue was proved to be in Madison County; secondly, whether there was proof of penetration and the corpus delicti. For that purpose we must examine the evidence most favorable to ths State on this appeal.

The evidence shows that at the time of the alleged crime the appellant was 35 years of age; that the Harrison child, age 5 1/2, was living with her divorced mother on November 18, 1960, in a two-room apartment, the rear room of which opened on a back porch; that the little girl at the time was suffering from chicken pox and was 'horribly broken out and she had a temperature' and was under the treatment of a physician; that she was sleeping in the back bedroom close to the back door. During the middle of the night her mother took the child's temperature and gave her some aspirins and went back to sleep. About 6:00 o'clock in the morning she went to the child's bedroom to check her condition and found her missing. She began a search of the rooms, bedroom and other parts of the building and looked out on the back porch, but could not find her daughter. She testified she saw the appellant's car over on Main Street. There is some discrepancy as to the description of the car on this point. Ater continuing the search for her daughter in two other buildings, she returned and found her daughter back in bed. At that time she stated (referring to her daughter): 'Well the pants she had on were torn and she had blood all over her face and her hands and her arms, even her feet.' Upon the mother's inquiry the evidence merely shows that Carol told her mother 'what had happened' without any explanation in the record. The mother further testified as to the bloody condition of the child's body. She called the police and gave the police the appellant's name. The police arrived and described the child's condition in much the same fashion as the mother. The child was taken to the hospital where a physician examined her and described her condition as follows:

'First of all, she was well broken out with chicken pox. Her temperature was 102. She was covered with blood over her abdomen--lower abdomen--, thighs and was bleeding rather profusely from her vagina. She was in a state of more or less hysteria and having a vaginal examination was not possible, but I could determine multiple lacerations or tears in the vagina. The only way you could have a satisfactory examination was under anesthesia and due to her condition with chicken pox you could not permit it and it was not done.'

The doctor treated Carol by stitching lacerations and giving her penicillin. Three weeks later there remained considerable vaginal infection and more penicillin was administered to the child. When the appellant was arrested he was taken before Carol Harrison and she was asked in his presence if she had ever seen the appellant before. A detective testified that she shook her head 'yes' and she also shook her head 'yes' when she was asked if the appellant was the one who had taken her out of her bed into his automobile. The appellant, in his own testimony, admitted that the child identified him, as stated by the detective, and that she was asked 'is this the man that hurt you?' and that Carol nodded her head affirmatively.

The evidence further shows that a Willie McIntire, an inmate of the Madison County Jail at the time the appellant was confined there, testified that appellant told him that he had taken a five year old girl out to a place between 'here and Linwood' and brought her back to the steps of the apartment, and that he had 'blacked out.' He said he must have been 'awfully drunk' at the time and that he had taken the girl because he had some trouble with the girl's mother. She had accused him of having a veneral disease.

Another witness, John Carroll, of Linwood, which is approximately five miles from Anderson, Indiana, testified that the appellant was rooming at his home and that about 6:00 a. m. on the morning of November 18, 1960, he observed the appellant taking a bath 'to get some of that off him'; that his clothing and trousers were covered with blood, particularly inside the zipper. The appellant told Mr. Carroll that 'his pants were so bloody and everything that he didn't think the blood would wash out of them so he thought he would just burn them.' The appellant explained to Mr. Carroll that this blood was from some sexual intercourse he had had. The police found blood in the appellant's automobile on the front seat. He claimed this was from a rabbit he had killed. However, an examination of the blood showed it was human blood of type O. When the child's blood was tested it was found to be of this type.

From the evidence, it is sufficiently shown by the appellant's own statement to his jail-mate that he had taken a five year old girl to a place 'between here and Linwood', which we judicially know is in Madison County, that the venue is sufficiently proved under the charge to be in Madison County.

In Shipman v. State (1962), Ind., 183 N.E.2d 823 where the question of proof of the venue was raised, the...

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39 cases
  • Rowan v. State
    • United States
    • Supreme Court of Indiana
    • March 5, 1982
    ...evidence such as the physical condition of the victim soon after the incident. Allbritten v. State, supra; Weaver v. State, (1963) 243 Ind. 560, 187 N.E.2d 485. Since the labia majora is defined as part of the female sex organ, the evidence of the tear in this case is sufficient to support ......
  • Sizemore v. State
    • United States
    • Court of Appeals of Indiana
    • January 29, 1979
    ...the jury to infer that the crime occurred in a given county, such a finding will not be disturbed on appeal. See Weaver v. State (1963), 243 Ind. 560, 187 N.E.2d 485. With respect to the sufficiency of the evidence to establish rape, it was incumbent on the State to prove, as an element of ......
  • Sizemore v. State
    • United States
    • Supreme Court of Indiana
    • October 25, 1979
    ...these conditions. A jury may infer penetration from the physical condition of the victim soon after the incident. Weaver v. State, (1963) 243 Ind. 560, 187 N.E.2d 485. The jury heard all of these witnesses and all of the evidence and made its determination. There is no sound reason to distu......
  • Brown v. State
    • United States
    • Supreme Court of Indiana
    • December 29, 1982
    ...circumstantial evidence such as the physical condition of the victim soon after the incident. Rowan v. State, supra; Weaver v. State, (1963) 243 Ind. 560, 187 N.E.2d 485. In the instant case, it is true that none of the three victims used the specific word "vagina" in describing the acts of......
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