Bowman v. State

• Decision Date: 21 November 1934
• Docket Number: 26248
• Citation: 192 N.E. 755,207 Ind. 358
• Parties: BOWMAN v. STATE
• Court: Indiana Supreme Court

192 N.E. 755

207 Ind. 358

BOWMAN v. STATE

No. 26248

Supreme Court of Indiana

November 21, 1934

1. CRIMINAL LAW---Trial---Instructions---Defendant as Witness.---Where defendant testified in his own behalf, an instruction that he was an interested witness and that the jury might con sider his interest the same as any other interested witness in weighing his testimony, held not erroneous as being an improper comment on accused's testimony. p. 359.

2. CRIMINAL LAW---Trial---Instructions---Necessity for Request.---Failure to instruct jury as to its duty to reconcile evidence with innocence of accused if possible was not error where defendant did not tender or request such an instruction. p. 361.

3. CRIMINAL LAW---Rape---Instructions---Lesser Degrees.---In a prosecution for rape, failure to instruct as to lesser degrees of crime embraced in the charge was not error where defendant did not tender or request instructions as to such matter. p. 362.

4. CRIMINAL LAW---Trial---Instructions---Forms of Verdict.---In rape prosecution, failure to submit to jury forms of verdict covering all lesser degrees of crime was not error in absence of a request therefor by defendant. p. 363.

5. CRIMINAL LAW---Trial---Instructions---Duty to Convict.---Instruction that "if you are convinced beyond a reasonable doubt that the defendant is guilty as charged in said affidavit, it is your duty to convict," held not erroneous. p. 363.

6. CRIMINAL LAW---Jury---Deliberation---Misconduct of Bailiff.---Where bailiff was present with jury during its deliberations and carried information to jury without order of court, such conduct constituted a gross abuse of his duties, but would not vitiate the verdict unless the defendant were harmed thereby. p. 367.

7. CRIMINAL LAW---Jury---Deliberation---Misconduct of Bailiff---Time to Object Thereto.---Where bailiff was guilty of misconduct during the jury's deliberations and defendant and his counsel knew of such misconduct before a verdict was returned and made no motion to withdraw the case from the jury or other objection, no objection could be made after an unfavorable verdict was returned. p. 367.

Frank Bowman was convicted of rape upon a female child under 16 years of age, and he appealed. Affirmed.

Ira C Tilton, of Valparaiso, for appellant.

Philip Lutz, Jr., Atty. Gen., Ralph E. Hanna, Deputy Atty. Gen., and Howard D. Clark, Pros. Atty., of Valparaiso, for the State.

OPINION

HUGHES, Chief Justice.

This was a prosecution by the state of Indiana against the appellant, upon an affidavit charging rape upon the person of one Berniece Sheets, a female child under the age of sixteen years. The appellant was tried by a jury and found guilty. The alleged crime was committed on December 10, 1930, and the affidavit charging the crime was filed March 23, 1932. The appellant, being twenty years of age, was sentenced to the Indiana State Farm for a period of one year.

The errors relied upon for reversal are as follows:

(1) The court erred in overruling appellant's motion to set aside the verdict.

(2) The court erred in overruling appellant's motion for a new trial.

Appellant assigns several reasons for a new trial, and without setting them out in full we will consider them as presented in the motion.

He first complains of that part of instruction No. 9 which says 'The defendant in this case has testified in his own behalf. He is an interested witness and you have the right to consider his interest in weighing his testimony the same as you would consider the interest of any other witness having a like degree of interest in the outcome of this case.' We do not think the above language is subject to the criticism offered by appellant; neither do we think the instruction is erroneous. It cannot be doubted that the appellant was an interested witness, and it is always proper for the jury to consider the interest of a witness in the result of the case, and in weighing the evidence of an interested witness the jury had the right to consider the interest of the witness. The jury was instructed that they had the right to consider the interest of defendant in weighing his evidence the same as the interest of any other witness having a like degree of interest in the outcome of the case. We cannot see that this was unfavorable comment, as claimed, on the testimony of the defendant.

The appellant cites the cases of Scheerer v. State (1925) 197 Ind. 155, 149 N.E. 892, and Kell v. State (1924) 194 Ind. 374, 142 N.E. 865, 867. Instruction No. 6 in the Scheerer Case, supra, was held bad, and properly so, but it is entirely different from the one under consideration. In the instruction given in the Scheerer Case, the court told the jury that there was a 'sharp conflict in the evidence.' This was not proper. It was the province of the jury to determine whether or not there was a conflict and, if so, it was also their duty to reconcile the evidence if possible. The statement that there was 'a sharp conflict in the evidence,' coupled with the further statement 'you should consider his (defendant) interest in the result of the case,' had the effect, as stated by the court, to discredit the testimony of the defendant.

In the Kell Case, supra, the following was a part of an instruction given: 'If you believe the things to which the defendant has testified as a witness, it will become your duty to give to it such force and effect as you deem it to be entitled to when considered in connection with the other testimony given upon the trial relating to the same matters.' (Our italics.) This instruction was condemned by this court for the reason, as said, 'if the jury were satisfied that his testimony was true, it was their duty to believe and act upon it without reference to other testimony.' This is correct. If upon the trial of a cause the jury believes that the testimony of a witness is true, it cannot be cast aside or disregarded on account of other testimony given relating to the same subject-matter. In the instant case this question is not involved and we do not consider the Kell Case, supra, in point.

It is next contended that the court failed to instruct the jury to reconcile the testimony upon the theory that the appellant is innocent. The court did, however, instruct the jury that the defendant is presumed to be innocent of any crime and that presumption continued to attend him step by step throughout the trial, and could only be overcome by such a degree of evidence as convinced the jury of the guilt of the appellant beyond a reasonable doubt.

The appellant did not tender or request any instruction as to the duty of the jury to reconcile the evidence, if possible, on the theory of his innocence. It is true that he had the right to such an instruction, but he cannot complain of the omission of such an instruction by the court unless he has prepared and tendered an instruction of the subject with a request that it be given. Alexander v. State (1930) 202 Ind. 1, 170 N.E. 542, 544; Jeffries v. State (1925) 195 Ind. 649, 146 N.E. 753; Brewster v. State (1917) 186 Ind. 369, 115 N.E. 54. The precise question is raised in the case of Alexander v. State, supra, and the court said: 'Appellant also complains that this second instruction nowhere told the jury to reconcile the evidence, if possible, on the theory of appellant's innocence. Appellant did not request any such instruction, which was his legal privilege and his duty, if he wished to base error upon its absence.' And, as said in the case of Powers v. State (1882) 87 Ind. 144: 'If instructions are not as full as desired, or do not cover all of the points in the case, the party desiring further instructions must ask for them, and submit such as he desires given. Appellant's counsel argue that under section 1823, R. S. 1881 [now section 2301, Burns' Ann. St. 1926, as amended by Acts 1927, c. 132, § 14], it was the duty of the court, without suggestion or asking, to properly instruct the jury upon every point in the case. The position seems to be that if, by oversight, mistake or accident, any point is omitted by the court in its instructions, the omission is fatal, whether the attention of the court may have been called to the matter or not. In other words, that the party and his counsel, knowing that the court is omitting to instruct the jury upon some point in the case, may remain quiet, and, without asking for further instructions, procure a reversal of the judgment on account of such omissions. Such a practice would be wrong in theory and mischievous in results.'

The appellant further contends that the court erred in not instructing as to the different degrees of the crime charged in the affidavit filed against him. The instruction given on this subject was as follows: 'This prosecution is based upon a statute of the State of Indiana which provides that 'whoever unlawfully has carnal knowledge of a female child under sixteen years of age is guilty of rape in the first degree and on conviction shall be imprisoned in the State prison for not less than five nor more than twenty one years.' No instruction was tendered or requested by the appellant upon the lesser degrees of crime embraced in the charge and therefore no error was committed by the court. The cases just cited are applicable to this point, and in addition thereto we cite the cases of Reynolds v State (1897) 147 Ind. 3, 46 N.E. 31, 33; Jeffries v. State (1925), supra; and Chesterfield v. State (1923) 194 Ind. 282, 141 N.E. 632. In the Reynolds Case, supra, the appellant contended that the jury should have been instructed as to the different degrees of crime contained in the charge. The court said: 'Instruction 2, however, was correct as far as it went, and was applicable to the evidence, and it is a...