Borolos v. State

Decision Date09 April 1924
Docket Number24,394
Citation143 N.E. 360,194 Ind. 469
PartiesBorolos v. State of Indiana
CourtIndiana Supreme Court

From Lake Criminal Court; William H. Matthews, Special Judge.

Prosecution by State of Indiana against Andrew Borolos for the crime of sodomy. From a judgment of conviction, the defendant appeals.

Affirmed.

George P. Rose, for appellant.

U. S Lesh, Attorney-General, and Dale F. Stansbury, for the State.

Ewbank C. J. Willoughby, J., absent.

OPINION

Ewbank, C. J.

Appellant was convicted of the crime of sodomy. Overruling his motion for a new trial is assigned as error, under which assignment he complains of the admission of certain evidence, and insists that the verdict is not sustained by sufficient evidence.

The affidavit was sworn to on March 17, 1923, and charged the commission of the alleged offense "on or about the 7th day of March, 1923", and the cause was tried by the court, without a jury, on April 3, following. The prosecuting witness testified that he first met defendant (appellant) "before September, 1922", that the crime was perpetrated upon him by defendant in the presence of other boys, among whom were F. B. and D. S., at a designated place in the woods to which he said they went with defendant, at a time when he said defendant gave them cigarettes and gave him a dollar, and when defendant had an overcoat with him, on which they lay down; that this happened three or four times; that the second time was about two weeks later, and the last time was about the last of September, and that defendant gave him a dollar three or four times and game him "moonshine." F. B. testified that he had known defendant only a few months, and that "around August", he was out in the woods at the place referred to with defendant and the prosecuting witness, and saw defendant commit the crime as charged, when defendant gave the prosecuting witness a dollar, and gave all of them cigarettes, and that defendant and another man had some "moonshine", which all of them drank; that it was in the summer time, but defendant had his overcoat with him. And D. S. testified that he was twice out in the woods at that place with the prosecuting witness, defendant and F. B., and that he saw defendant do the act charged, lying on the ground with the prosecuting witness, but did not know the date, but that it was "around June", and he thought the last time was "the last of June." Another witness testified that on the Sunday before the trial, defendant had offered him $ 50 to go on the witness stand and "lie about" defendant, and to "tell a lie about it so you can free me." There was no motion to require the state to elect a date on which it would rely. The mere fact that the witnesses did not agree as to the exact time when the offense was committed did not make this evidence insufficient to sustain the finding of guilty.

The prosecuting witness testified, without objection, that while they were over there in the woods together, defendant "mistreated us", and having repeated the statement that he "mistreated me", told exactly what defendant did in committing the alleged crime at that time, and stated that the other boys were only a few feet away at the time, and that at the second, third and fourth times when the act was repeated, defendant had met him and the others by appointment, when they drank moonshine together, and defendant "gave us money." F. B. after testifying that he was out there with some boys and men, including defendant and the prosecuting witness and D. S., when they drank "moonshine" which defendant and another man had brought, also testified that he stood only a few feet away while he saw the alleged unlawful act committed, and that the same persons went out together at least four times, when defendant repeated the act with the prosecuting witness, and that he saw defendant give the prosecuting witness a dollar, being "right there" at the time, and that "this" had been "going on among the boys down there * * * between themselves * * * this kind of work." Over an objection and exception by defendant, upon a showing that the time referred to was about two months before the date of the crime charged, this witness (F. B.) was permitted to answer the question: "Tell the court whether or not this man ever did that to you" by stating that "Andy done it about four or five times." In overruling the objection to this question, the trial judge remarked that: "This would not make this man liable for his offense in this prosecution", but undertook to state a ground on which he believed it to be admissible, which seems to be imperfectly reported. Similar testimony by D. S. was also admitted over an objection and exception. Appellant insists that the admission of such evidence was reversible error, as relating to the commission of a different offense upon a different person, not charged in the indictment. There was some evidence to the effect that the defendant worked regularly and bore a good reputation for peace and quiet and for honesty, and he testified that he did not "meet those boys together and go out in the woods with them", and did not "go out with those boys at night", and did not meet the prosecuting witness and go to the woods with him, that he gave the boys no money, but sent his earnings "to old country", and that he did not have any "moonshine", nor drink any; and to the question, "Did you do any bad things with Louis S.?" (the prosecuting witness), he answered, "No sir, do nothing." But he was not questioned any more specifically as to what he did or did not do in the way of committing the crime charged. Under this state of the evidence, the cause having been tried by the court, and the court having stated at the time the objection to the evidence was overruled that "this wouldn't make this man liable for his offense in this prosecution", we should hesitate to reverse the judgment because of that ruling, even if the testimony were not competent for any purpose. But where the evidence discloses a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or offers an explanation of facts that, unexplained, would tend to discredit the evidence introduced by the state, evidence of other crimes than the one charged in the indictment is sometimes admissible; and this rule is particularly applicable to trials for sexual offenses. State v. Markins (1884), 95 Ind. 464; State v. Place (1893), 5 Wash. 773, 32 P. 736; Barnett v. State (1922), 104 Ohio St. 298, 135 N.E. 647; State v. Desmond (1899), 109 Iowa 72, 80 N.W. 214; State v. Hummer (1905), 72 N.J.L. 328, 62 A. 388; Harmon v. Territory (1905), 15 Okla. 147, 159, 79 P. 765; Proper v. State (1893), 85 Wis. 615, 628, 55 N.W. 1035; Cook v. State (1922), 155 Ark. 106, 244 S.W. 735.

In State v. Place, supra, which was a prosecution for an alleged assault upon a passenger in a moving train, with the intent to commit sodomy, evidence that about two hours earlier, the same evening, defendant had committed a like assault upon another passenger on the same train was held competent, although the train was then in a different state. In Barnett v State, supra, which was a prosecution for the crime of sodomy, committed on a little girl who had been taken to ride in defendant's automobile, evidence of other like assaults upon other little girls who were taken to ride in an automobile at about the same time, with proof tending to identify the man who took them riding as the defendant, or the car in which they were taken as belonging to him, was held...

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