Alstott v. State
| Decision Date | 07 June 1933 |
| Docket Number | 25,666 |
| Citation | 185 N.E. 896,205 Ind. 92 |
| Parties | Alstott v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Appeal---Matters Not in Record---Presumptions---Affidavit Filed After Dismissal of Indictment.---In the absence of a contrary showing, it will be presumed on appeal that the affidavit on which defendant was tried was filed after the dismissal of an indictment for the same offense, even though the affidavit was signed two days before dismissal of the indictment. p. 93.
2. CRIMINAL LAW---Evidence---Reopening Case in Chief After Close---Discretion.---The court may in its discretion admit original testimony at any time, even after the evidence is closed, and the cause will not be reversed for that reason unless a clear abuse of discretion is shown. p. 94.
3. CRIMINAL LAW---Evidence---Venue.---In a prosecution for rape when the prosecuting witness had described the place where the offense occurred and pointed it out to other witnesses it was proper for such other witnesses to testify that such place was in Marion County, and such evidence was sufficient to establish the venue of the offense. p. 94.
4. RAPE---Verdict---Should Not Fix Punishment.---A verdict finding defendant guilty of rape under 2316, Burns Supp. 1929 without assessing the punishment is proper, punishment being fixed by the statute. p. 94.
5. CRIMINAL LAW---Judgment---Irregularities---Waiver.---A n y irregularity in the judgment was deemed waived where no motion was made to modify it. p. 94.
6. RAPE---Evidence---Appearance of Prosecuting Witness.---In a prosecution for rape it was proper to admit testimony as to the appearance of the prosecuting witness after her return from a ride with defendant and his companions on which the offense was committed where it was admitted that her condition was brought about by defendant and his companions with whom he was acting. p. 95.
7. CRIMINAL LAW---Evidence---Written Statement of Accused---Made While Under Arrest.---In a prosecution for rape a written statement of accused, made while under arrest, referring to the prosecuting witness though not naming her, was admissible if voluntarily made. p. 95.
8. RAPE---Punishment---Mitigating Circumstances---Effect on Judgment.---The fact that punishment of life imprisonment might seem too severe in a rape case, because of mitigating circumstances, would not justify an acquittal by the jury or a reversal of the judgment. p. 96.
9. INDICTMENT AND AFFIDAVIT---Affidavit---Who May Make.---Any person may make an affidavit charging a criminal offense. p. 96.
From Marion Criminal Court; F. Alford, Special Judge.
Joseph Alstott was convicted of rape and he appealed.
Affirmed.
Bess Robbins, for appellant.
Arthur L. Gilliom, Attorney General, and Harry L. Gause, Deputy Attorney General, for the State.
The appellant was convicted of rape upon a female child under the age of twelve years. The only questions saved and presented by the appellant arise on the overruling of his motions in arrest of judgment and for a new trial. An indictment had been returned against the appellant, and on July 5, 1928, the indictment was dismissed, and the affidavit under which he was tried and convicted was filed. It must be presumed that the indictment was dismissed before the affidavit was filed. The affidavit was sworn to on July 3rd. The appellant contends that the statute authorizing prosecutions by affidavit does not authorize this prosecution for the reason that the affidavit was sworn to prior to the dismissal of the indictment. The part of § 2150, Burns Supplement of 1929, involved, reads as follows:
"All public offenses, except treason and murder, may be prosecuted in the circuit court or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit."
In the absence of an affirmative showing that an indictment was pending at the time of the filing of the affidavit, we must hold that prosecution by affidavit was proper.
At the conclusion of the state's evidence the appellant moved for a directed verdict upon the ground that the venue had not been proven, and that there was no evidence upon which the jury might properly find that the offense charged had been committed in Marion County. The court overruled the motion and permitted the state to introduce further evidence on the question of venue. Certain witnesses testified that they went in an automobile with the child in question and that she pointed out to them the place where the crime was charged to have been committed, and that the place pointed out to them as the place described by her while testifying as a witness was located in Marion County.
The court may in its discretion admit original testimony at any time, even after the evidence is closed, and the cause will not be reversed for that reason unless a clear abuse of discretion is shown. Kahlenbeck v. State (1889), 119 Ind. 118, 21 N.E. 460; Hire v. State (1896), 144 Ind. 359, 43 N.E. 312.
It was proper to permit the witnesses to testify that the place pointed out to them by the child was located in Marion County, and the evidence thus furnished was sufficient to sustain the verdict of the jury upon that question.
It is urged that the evidence of the consummation of the offense is not sufficient to sustain the verdict. It is sufficient under the authorities. Jeffries v. State (1925) 195 Ind....
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