Bowman v. State, 26248.

• Citation: 192 N.E. 755,207 Ind. 358
• Decision Date: 21 November 1934
• Docket Number: No. 26248.,26248.
• Parties: BOWMAN v. STATE.
• Court: Indiana Supreme Court

207 Ind. 358
192 N.E. 755

BOWMAN
v.
STATE.

No. 26248.

Supreme Court of Indiana.

Nov. 21, 1934.

Appeal from Superior Court, La Porte County; Harry L. Crumpacker, Judge.

Frank Bowman was convicted of rape upon the person of a female child under the age of 16 years, and he appeals.

Affirmed.

[192 N.E. 756]

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.

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 has 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;

[192 N.E. 757]

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...