Bartlow v. State
| Decision Date | 18 June 1915 |
| Docket Number | 22,666 |
| Citation | 109 N.E. 201,183 Ind. 398 |
| Parties | Bartlow v. State of Indiana |
| Court | Indiana Supreme Court |
From Knox Circuit Court; Benjamin M. Willoughby, Judge.
Prosecution by the State of Indiana against Claude Bartlow. From a judgment of conviction, the defendant appeals.
Affirmed.
Edward Richardson, A. H. Taylor, LeRoy M. Wade, and A. J. Padgett for appellant.
Thomas M. Honan, Attorney-General, and Edwin Corr, for the State.
Appellant was convicted of the crime of rape, committed upon the person of a female under sixteen years of age, and appeals to this court, assigning as error the overruling of his motion for a new trial.
Appellant in his brief relies on four alleged errors, (1) the giving of instruction No. 3, (2) the giving of instruction No. 5, (3) the giving of instruction No. 7, (4) the refusal of the court to give instruction No. 1 tendered by appellant.
Appellant is not in a position to complain of the court's refusal to give instruction No. 1, tendered by him, for the reason that he did not tender the instruction or request that the same be given until after the argument of the case had begun. Subd. 6, § 2136 Burns 1914, Acts 1909 p. 257; Masterson v. State (1896), 144 Ind. 240, 43 N.E. 138; Musser v. State (1901), 157 Ind. 423, 61 N.E. 1; Starr v State (1903), 160 Ind. 661, 67 N.E. 527.
Instruction No. 3 given by the court is as follows: "The material allegations of the affidavit are that the defendant did unlawfully and feloniously ravish one Janie Fair, and that said Janie Fair was at the time a female child under sixteen years of age, and that said offense was committed in Knox County, in the State of Indiana." It is contended by appellant that the instruction is erroneous for the reason that the court should have also included in the statement of the material allegations to be proven, the date upon which the alleged crime was committed. The time when the crime was committed is not of the essence of the offense, and if the statute of limitation was not sufficiently stated in this instruction, the law as to the proof of time was included in instruction No. 5 of which appellant also complains.
Instruction No. 5 reads as follows: "In this case the affidavit alleges that the offense was committed on the 22d day of December, 1911, the court instructs you that it is not necessary to prove the exact date on which said offense was committed, but it is sufficient to show that the offense, if any was committed, was committed within five years prior to the filing of the affidavit against said defendant, and it must be shown that the offense, if any, was committed in Knox County, in the State of Indiana."
Complaint is made of this instruction on the grounds that as the prosecuting witness fixed the time of the alleged offense at December 22, 1911, that the State is bound by that date. The witness fixed that date it is true, but also testified that at various other times subsequent to that date, appellant had had intercourse with her, all of which were within the statute of limitations.
This instruction fully covers the question of proof required as to the time when the offense was committed.
If appellant desired to confine the State to any particular act or date, he should have moved the court to require the State to elect on which particular act, as shown by the evidence, it relied for conviction. The court's refusal to require the State to so elect would have been error. Lebkovitz v. State (1887), 113 Ind. 26, 14 N.E. 363, 597; Squires v. State (1891), 3 Ind.App. 114, 116, 28 N.E. 708, 22 Cyc. 407; State v. King (1902), 117 Iowa 484, 91 N.W. 768; 23 Cyc. 279; Long v. State (1877), 56 Ind. 182, 26 Am. Rep. 19.
In the case of State v. Brown (1882), 58 Iowa 298 12 N.W. 318, two persons were jointly indicted for the crime of rape, and the evidence showed two separate assaults, one act was committed by one defendant in the absence of the other, and another act was committed subsequently in another place by the other defendant, without assistance. It was held that the prosecutor should elect upon which...
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