Abshire v. State

• Decision Date: 06 October 1927
• Docket Number: No. 25339.,25339.
• Citation: 158 N.E. 227,199 Ind. 474
• Parties: ABSHIRE v. STATE.
• Court: Indiana Supreme Court

199 Ind. 474

158 N.E. 227

ABSHIRE

v.STATE.

No. 25339.

Supreme Court of Indiana.

Oct. 6, 1927.

Appeal from Vanderburgh Circuit Court; Charles P. Bock, Judge.

Archie Abshire was convicted of rape, and adjudged to be an habitual criminal, and he appeals. Affirmed.

Ernest J. Crenshaw, of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.

GEMMILL, J.

It was charged by an amended affidavit that the appellant committed the crime of rape on one E. B., a woman over the age of 16 years. Said crime is defined in section 1, c. 148, Acts 1921, p. 373; and in section 2429, Burns' 1926. It was also charged therein that he had been previously twice convicted, sentenced, and imprisoned in a penal institution for felonies. The law defining an habitual criminal is set out in section 1, c. 82, Acts 1907, p. 109; and in section 2339, Burns' 1926. He entered a plea of not guilty. The trial was by the court without a jury.

The court found that he was guilty of the crime of rape as charged, and that he had previously been convicted of the felony of assault and battery with intent to commit rape and of the felony of grand larceny, and served sentences in a penal institution for each of said felonies. The court adjudged that he was guilty of rape, and sentenced him to be committed for said offense to the Indiana State Prison for a period of not less than 5 nor more than 21 years, and assessed a fine of $1,000. The court further adjudged that he was an habitual criminal, within the meaning of the statute, and that he should be committed to the Indiana State Prison for and during his life as an habitual criminal. He filed a motion for a new trial, stating as causes therefor that the finding of the court was contrary to law, and that the finding of the court was not sustained by sufficient evidence, which motion was overruled. On appeal, the overruling of the motion for a new trial is assigned as error.

The prosecuting witness, after stating her name, testified as follows:

“I live at 11 East Keller street, and I am 17 years old. Until four weeks ago, I lived at 221 State street, where on the 4th of July the defendant entered my house at about a quarter of 4 that morning through the front window. This was in Vanderburgh county, Ind. The house is composed of four rooms. My mother and father slept in one room, and I slept in the front room with my nephew, who is 4 years old. My sister, who is 14 years old, slept on a pallet in the same room. The defendant came in the front window and was standing by the side of the window when I woke up. He was walking on his hands and knees and shining his flash light. Thinking it was my father, I said, ‘Is that you Daddy?’ He said, ‘Shut up, or I will kill you,’ whereupon he came over and laid a knife on my neck and a gun on my breast. He asked my age, whether or not I was married, whether or not I had any children, and my name, stating that, ‘I saw you over at the park that Wednesday before, and have been waiting a chance for you, and now is my chance.’ I pushed the gun away, and he put it into his pocket, but kept the knife on my neck. He said if I ‘hollowed’ he would kill me, but nevertheless I ‘hollowed,’ and he pressed the knife on my neck. I lay there on the bed and never got up during the time. I saw his face. The defendant had intercourse with me against my will. I never knew him before, and it was because of fear that caused me to submit. After he left, at 4 o'clock I went into the room occupied by my folks and told them about it. It was striking 4 when I told my folks.”

On cross-examination, she testified:

“I have never been married. I never saw the man before that morning. I couldn't see his features distinctly at first, but when he was standing in front of the window I could tell what he looked like. After he came over onto the bed, I could see him by the flash light which shone into his face. After he put the gun into his pocket, he had the flash light in one hand and the knife in the other. He had on a dark brown coat or brown sweater with slouchy trousers that were darker than the coat. He had on a cap that was pulled well down over his...