Alexander v. State, 25733.

Citation202 Ind. 1,170 N.E. 542
Decision Date11 March 1930
Docket NumberNo. 25733.,25733.
PartiesALEXANDER v. STATE.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Monroe Circuit Court; J. Robinson, Special Judge.

George Alexander was convicted of assault and battery with intent to commit a felony, and he appeals.

Affirmed.Theodore J. Louden, Robert G. Miller, and James W. Blair, all of Bloomington, for appellant.

James M. Ogden, Atty. Gen., and V. Ed Funk, Deputy Atty. Gen., for the State.

TRAVIS, C. J.

This appeal is from the judgment rendered upon the verdict of guilty of assault and battery with intent to commit a felony. Acts 1905, c. 169, § 352, Burns' Ann. St. 1926, § 2417. The crime charged was carnal knowledge of a female child under sixteen years of age. Acts 1927, c. 201, § 2, p. 576, Burns' Ann. St. Supp. 1929, § 2429.

The error presented is the overruling of appellant's motion for a new trial, and specifically for (1) overruling appellant's motion to continue the cause; (2) misconduct of the jury; (3) sustaining appellee's objection to a question addressed to the prosecuting witness on cross examination, which concerned her former chastity; and (4) giving two instructions to the jury.

Appellant's verified petition to continue the cause is based upon the absence of two material witnesses. Concerning the first absent witness, the prosecuting attorney admitted that such witness, if present, would testify to the facts which appellant in his affidavit for the continuance alleged he could prove by such absent witness. Acts 1927, c. 132, § 11, p. 417; Burns' Ann. St. Supp. 1929, § 2250. Concerning the second absent witness, the prosecuting attorney admitted that such witness, if present, would testify to the facts which appellant in his affidavit for continuance alleged he could prove by such absent witness, except the fact alleged which he could prove by such absent witness that the “prosecuting witness sometime prior to the charge in this cause came to her (the absent witness) home” and made an immoral request, which it is unnecessary to relate; and further that the prosecuting witness at that time told her (the absent witness) of other immoral acts she had committed; and further that she (the absent witness) saw the prosecuting witness in the act of the commission of revolting immoral acts.

[1] The motion to continue the cause was overruled. Appellant objected to the admissions made by the prosecuting attorney, for the reason that the admissions did “not conform to the affidavit for continuance, nor comply with the statute,” which objection was overruled. The single proposition made by appellant is that the showing for continuance was properly and seasonably made, and should have been granted; and the overruling of the motion was an abuse of discretion. The purpose of proof of the facts which the prosecuting attorney admits appellant could prove by the second absent witness is not shown by the record or brief; but, if the purpose was to prove that the character of the prosecuting witness was immoral, and such immoral character was an element of defense, evidence to prove such fact is incompetent. The unchastity of the prosecuting witness, if true, cannot aid appellant. It was not error to overrule the motion to continue the cause. Heath v. State (1910) 173 Ind. 296, 90 N. E. 310, 21 Ann. Cas. 1056;Barker v. State (1918) 188 Ind. 263, 120 N. E. 593.

[2] The misconduct of the jury, presented to the nisi prius court for the first time by appellant's motion for a new trial, in so far as the brief shows or suggests, is supported by one affidavit. The affidavit is not brought to this court by a bill of exceptions...

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