Barker v. State

• Decision Date: 30 October 1918
• Docket Number: No. 23133.,23133.
• Citation: 120 N.E. 593,188 Ind. 263
• Parties: BARKER v. STATE.
• Court: Indiana Supreme Court

188 Ind. 263

120 N.E. 593

BARKER

v.STATE.

No. 23133.

Supreme Court of Indiana.

Oct. 30, 1918.

Appeal from Circuit Court, Pulaski County; William C. Pentecost, Judge.

Nathan T. Barker was convicted under an indictment charging him with carnal knowledge of a female child under 16 years of age, contrary to Acts 1907, c. 60, and he appeals. Affirmed.

Caleb W. Barker, of Winamac, and McConnell, Jenkins & Jenkins, of Logansport, for appellant. Evan B. Stotsenburg, of New Albany, Thomas H. Branaman, of Brownstown, and James A. Dilts, of Winamac, for the State.

MYERS, C. J.

Appellant was indicted, tried, and convicted upon an indictment which charged him with carnal knowledge of a female child under 16 years of age. Acts 1907, p. 85. The indictment was returned April 23, 1913, and alleged that the offense was committed on or about July 26, 1912. To this indictment appellant pleaded specially, averring, in substance, that on April 23, 1913, two indictments were returned against him, both for criminal assault upon the same person, one charging the offense as having been committed on or about January 1, 1909, and the other on or about July 26, 1912; that he was arrested, tried before a jury, and acquitted of the offense charged as of January 1, 1909; that the state in the trial of that cause introduced evidence and facts before the jury touching all times and dates, without reference to the time and date laid in the indictment, and also interrogated and cross–examined this appellant generally as to whether he was guilty of the offense charged; that the evidence to prove the charge in the present indictment will be the same and no wise different from that produced against him at the former trial.

[1] A demurrer to this answer for want of facts was sustained, and this ruling is assigned as error. Whatever may be said for or against the sufficiency of this answer is immaterial, for, under the recent holdings of this court, it is unnecessary for us to determine the sufficiency of a special plea where the evidence to support the same is admissible under the general issue. Lucas v. State, 173 Ind. 302, 90 N. E. 305;Williams v. State, 169 Ind. 384, 83 N. E. 790;Boxell v. Bright Nat. Bank, 184 Ind. 631, 634, 112 N. E. 3; L. R. A. 1917A, 1235, note.

Former jeopardy was the theory of this answer, and, while our Criminal Code authorizes any matter of defense to be pleaded specially, yet it also provides that a defendant in a criminal prosecution under a plea of not guilty may prove on the trial that he has before had judgment of acquittal for the same offense. Acts 1905, p. 584, § 198 (section 2069, Burns 1914).

[2] Appellant has failed to point out any advantage to which he was entitled under his special plea that was not or could not properly have been accorded him under the general issue. The burden is on him to show that the ruling of which he complains was harmful, and, failing so to do, his contention must be denied. Groff v. Clark, 146 Ind. 52, 44 N. E. 803;Chicago, etc., R. Co. v. Dinius, 180 Ind. 596, 623, 103 N. E. 652;Ward v. State, 179 Ind. 524, 101 N. E. 809;City of Terre Haute v. Lauda, 58 Ind. App. 480, 108 N. E. 392.

[3] Appellant's motion for a discharge under the provisions of section 2091, Burns 1914, was overruled, and this ruling he assigns as error. It is well settled in this state that where a party seeks the benefit of a statute he must bring himself clearly within its provisions. Woodward v. State, 174 Ind. 743, 93 N. E. 169;Town of Windfall City v. State, 174 Ind. 311, 313, 92 N. E. 57;Blair v. City of Ft. Wayne, 51 Ind. App. 652, 657, 98 N. E. 736. In this case the motion fails to show that his trial was not delayed by his own act. This omission was fatal to the motion, and the ruling of the trial court must be sustained. Klein v. State, 157 Ind. 146, 60 N. E. 1036;City of Ft. Wayne v. Bender, 57 Ind. App. 689, 105 N. E. 949.

[4] Appellant next insists that the court erred in overruling his motion for a new trial. His brief does not contain a copy of the motion or a statement from which all the questions sought to be presented may be intelligently considered without going to the record. In Dorsey v. State, 179 Ind. 531, 100 N. E. 369, it is said:

“The rules of this court contemplate that appellant's brief shall be so prepared that each judge, by a consideration of the brief alone, and without examining the transcript, may intelligently consider each question presented. The rules further contemplate that the points on which appellant relies must be definitely and specifically stated.”

From appellant's brief we learn that his motion for a new trial contains 98 reasons or specifications of error, but we will consider only those where it appears that a good–faith effort has been made to present them. As to all others it must be understood that we regard them as having been waived.

[5] He begins his statement of the motion by saying, “The first, second, third, and fourth are statutory.” Then follows a reference to the page and line of the record where we assume the causes relied on may be found. Under the heading, “Propositions and Points by which Appellant Seeks a Reversal of the Judgment of Conviction,” and referring to the overruling of his motion for a new trial, he makes the following points: “The verdict of the jury is contrary to, and not sustained by, the law or evidence.” Also: “The absence of evidence in a criminal case may of itself be sufficient to entitle the defendant to go acquit.” In his argument he asserts that the evidence is wholly insufficient to sustain the verdict. Following this assertion, he gives a history of the case leading up to the return of the indictment upon which he was tried and convicted. If from this information we may assume that the first, second, third, and fourth causes in appellant's motion are based upon clause 9, § 2158, Burns 1914, which provides that a new trial shall be granted when the verdict of the jury is contrary to law, or is not sustained by sufficient evidence, then it would be our duty to look to appellant's condensed recital of the evidence as required by rule 22, cl. 5 (55 N. E. vi).

[6][7] Turning to the evidence furnished in compliance with this rule, we find the names of many witnesses whose testimony, instead of being set forth in narrative form, is for the most part the conclusions of counsel. This is not sufficient. Rose v. City of Jeffersonville, 185 Ind. 577, 114 N. E. 85. These conclusions must be eliminated, and can have no controlling force in determining the questions thus sought to be presented. However, we are advised from the evidence submitted, and which we may consider, that there is irreconcilable conflict in the testimony given at the trial by the prosecuting witness and that detailed to the jury by the appellant. In some particulars the testimony of both are slightly corroborated. Appellant has not assumed the responsibility of pointing out wherein the evidence is insufficient to support the verdict. This he should have done. Bray v. Tardy, 182 Ind. 98, 105 N. E. 772. But from our examinationof the evidence set forth in appellant's brief and by reference to the record, we conclude that the verdict is not without evidence to support it, and is not for that reason contrary to law.

[8] It is our province to consider only the evidence most favorable to appellee (Reitz v. Hodgkins, 185 Ind. 163, 112 N. E. 386;Pittsburgh, etc., R. Co. v. Pence, 185 Ind. 495, 113 N. E. 7), and, this done, we must conclude that the question of guilt or innocence of appellant was for the jury. This court's opinion on the weight of the evidence, or on the conclusion of the jury, will not, under the well–settled rules of law, justify us in disturbing the judgment of the trial court. McKeen v. A. T. Bowen & Co., 182 Ind. 333, 341, 106 N. E. 529;American, etc., Tin Plate Co. v. Reason, 184 Ind. 125, 110 N. E. 660;Caldwell v. Ulsh, 184 Ind. 725, 734, 112 N. E. 518;People v. Deatrick, 30 Cal. App. 507, 159 Pac. 175;Parmalee v. State, 99 Neb. 598, 157 N. W. 1010;State v. Bragdon, 136 Minn. 348, 162 N. W. 465;People v. Edwards, 173 App. Div. 375, 159 N. Y. Supp. 410;State v. Gaimos, (Mont.) 162 Pac. 596;State v. Smith, 95 Wash. 271, 163 Pac. 759;State v. Tinkler, 72 Kan. 262, 83 Pac. 830.

[9] Our attention will be next given to the action of the court in refusing to give the jury certain instructions tendered by appellant. These instructions, nine in number, we have carefully read and compared with those given to the jury. From this investigation we conclude that all the instructions so tendered and refused were fully covered by the instructions given except two, one of which was on the subject of the presumption of law as applied to good moral character and to the benefit to which an accused on trial is entitled. This instruction assumes that no evidence was introduced at the trial tending to show that the reputation of appellant for truth and veracity and moral character was not good. The record discloses the names of three witnesses who testified that appellant's reputation for morality was bad. This instruction was not pertinent to the evidence, and no error intervened by refusing to give it.

[10] The other of the two instructions was on the subject of misconduct of John M. Spangler while closing the argument for the state. Appellant's brief contains no statement of the record showing any reason for giving this instruction. Consequently no question is presented for our consideration. Dorsey v. State, 179 Ind. 531, 534, 100 N. E. 369. Nor did the court err in refusing to give the other instruction. Waldon v. State, 182 Ind. 112, 104 N. E. 300;Thain v. State, 182 Ind. 345, 353, 106 N. E. 690;Breadheft v. Cleveland, 184 Ind. 130, 136, 108 N. E. 5, 110 N. E. 662.

[11] It is also contended that the court erred in permitting the prosecuting witness, over appellant's objections, to answer questions propounded by the state relating to his carnal...