Anderson v. The State

• Decision Date: 31 December 1885
• Docket Number: 12,216
• Parties: Anderson v. The State
• Court: Indiana Supreme Court

4 N.E. 63

104 Ind. 467

Anderson v. The State

No. 12,216

Supreme Court of Indiana

December 31, 1885

Reported at: 104 Ind. 467 at 476.

From the Noble Circuit Court.

The judgment is affirmed, with costs.

H. G Zimmerman, F. Prickett, L. H. Wrigley and S. M. Hench, for appellant.

F. T Hord, Attorney General, H. C. Peterson and R. P. Barr, for the State.

Niblack C. J. Zollars, J., was absent.

OPINION

Niblack, C. J.

This was a criminal prosecution based upon the following indictment:

"State of Indiana, Noble County, ss.

"In the Noble Circuit Court, of the June term, 1884.

"State of Indiana v. John Anderson. Indictment.

"The grand jury of the county of Noble, upon their oath, do present that John Anderson, on the 18th day of June, 1884, at the county of Noble, in and upon one Josephine Fielding, a woman, did forcibly and feloniously make an assault, and her, the said Josephine Fielding, then and there, forcibly and against her will, feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana."

Anderson, the defendant below and the appellant here, moved to quash the indictment, upon the ground that it was not charged with sufficient certainty that the crime was committed in Noble county, in this State. The circuit court nevertheless overruled the motion to quash the indictment, and a trial, which ensued, resulted in the jury finding the appellant guilty as charged, and in a judgment that he be imprisoned in the State's prison for the term of five years. Numerous questions were reserved upon the proceedings below.

While the indictment was not as full, formal and explicit as the old forms required, and as it might easily have been made, it was, notwithstanding, a substantially good indictment under our present criminal code, which, for many purposes at least, makes the caption and upper marginal title a preliminary part of an indictment. R. S. 1881, sections 1732, 1733; Moore Crim. Law, sections 165, 166; 1 Bishop Crim. Proc., section 377. See, also, section 1756, R. S. 1881.

The plain, and indeed only fair inference from the indictment, considered with reference to all its parts, was that the county of Noble, in which the offence was charged to have been committed, was the county of that name situate within and constituting a part of this State.

The prosecuting witness testified that the appellant had sexual intercourse with her twice while she was alone with him in the woods near Rome City, on the day named in the indictment, and that on both occasions the intercourse was forcible and against her will. The appellant, who became a witness in his own behalf, admitted the acts of sexual intercourse testified to by the prosecuting witness, at the times and places indicated by her, but, in extenuation, claimed, and very positively asserted, that both acts of intercourse were with her full and free consent.

As applicable to the issue thus made by the evidence, the court instructed the jury as follows:

"If you find from the evidence in this case that an act of sexual intercourse did take place between the defendant and the prosecuting witness, as averred in the indictment, the question as to whether or not the prosecuting witness voluntarily consented to such act is a question of fact for you to determine from the evidence in the case.

"The defendant insists that she did thus voluntarily consent thereto, and that he used no force or coercion of any kind to compel such consent, but that she yielded to his desires upon his request alone.

"While the prosecution insists that she did not voluntarily consent, but that she resisted to the full extent of her ability, and only yielded when her will was overpowered, and that if she finally submitted to her fate it was against her will and for fear of more serious consequences.

"You are to say from the evidence which, if either, is right. And if, after giving due weight to all the evidence, you find the prosecuting witness did, voluntarily, consent to such act of intercourse, and not under coercion, you should acquit; but if you find, beyond a reasonable doubt, that the act was by force, and against her will, and find the other facts averred in the indictment established beyond a reasonable doubt, you should convict."

The appellant assails this instruction for the alleged reason that it injuriously restricted him to a single theory in his defence, since he had the right, up to the last moment, to elect upon what ground he would base his defence. When the trial began the appellant had an election as to the ground upon which he would rest his defence. Having, however, elected to take the stand as a witness and to admit all the material matters charged against him, except the alleged forcible and felonious character of the sexual intercourse, he thereby committed himself to a single theory in his defence, for the obvious reason that by his admissions, he had rendered any and every other line of defence unavailable. The instruction in question was not, therefore, open to the objection urged against it. The court also instructed the jury as follows:

"Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue. You are not to understand from this that a rape can not be committed on a woman of bad moral character. A woman may be a common prostitute and may still be the victim of a rape. This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that a woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste. So that whatever conviction this evidence may produce in your minds as to whether she is of good or bad moral character, or as to whether she is chaste or unchaste, you will treat it as a circumstance affecting her credibility to aid you in determining whether her story is true or false, and the act of intercourse voluntary or against her will."

There was evidence to which this instruction was applicable, and, in the connection in which it was given, it stated the law aptly and appropriately.

The court further instructed the jury in these words:

"Evidence has been introduced as to an attempted escape from jail by the defendant while in the custody of the sheriff of this county on this charge. If you find from the evidence that defendant did thus attempt to escape from custody, this is a circumstance to be considered by you in connection with all the other evidence to aid you in determining the question of his guilt or innocence."

There was evidence tending to prove that within a short time after the 18th day of June, 1884, the appellant was committed to the common jail of Noble county upon the charge contained in the indictment in this case, and that, not long after he was so committed, he made a vigorous and nearly successful effort to escape from that jail. That effort to escape constituted a circumstance which the jury were authorized to consider in connection with the other evidence in the cause, and, in that view, we see no error in the instruction given in relation to it as above. Whart. Crim. Ev., section 750.

The court still further instructed the jury that, "In determining the weight to be given the testimony of the different witnesses you should take into account the interest or want of interest they have in the case, their manner on...