Burton v. State, 28828

• Decision Date: 05 May 1953
• Docket Number: No. 28828,28828
• Parties: BURTON v. STATE.
• Court: Indiana Supreme Court

Page 892

111 N.E.2d 892

232 Ind. 246

BURTON v. STATE.

No. 28828.

Supreme Court of Indiana.

May 5, 1953.

John G. McNutt and Bernard Korbly, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., J. Emmett McManamon, former Atty. Gen., John Ready O'Connor, William T. McClain, Deputy Atty. Gen., for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment on a finding made by the court, without the intervention of a jury, that appellant was guilty of sodomy on his daughter under the first clause of § 10-4221, Burns' 1942 Replacement, and that appellant should be imprisoned in the State Prison for a term of not less than two nor more than fourteen years and be fined in the sum of $100. ¹ The indictment was returned by the grand jury of Marion County on April 5, 1950, and charged the offense was committed 'on or about the 25th day of March, A.D. 1950.' The error assigned here is the court erred in overruling appellant's motion for a new trial.

It is not necessary to set forth in detail the testimony concerning the alleged depraved acts of appellant. We adhere to the policy announced in Sanders v. State, 1940, 216 Ind. 663, 666, 25 N.E.2d 995, 996, as follows:

'This was a prosecution of the 'abominable and detestable crime against nature.' The statute gives no other definition of the crime, obviously out of regard to the better sentiments of decent humanity, and to leave the record undefiled by details. The court has read the evidence in the record, and for the same reasons which influenced the framers of the statute, refuses to defile the reports by a recital of the sordid, immoral, depraved, and detestable statements therein contained.'

The grave nature of the offense charged as well as the nature of the testimony has caused this court great concern, for we realize the danger to an accused when he is charged with a sexual offense committed only in the presence of a prosecutrix. See 3 Wigmore, Evidence (3rd Ed.) § 924a. Although on review we do not attempt to place ourselves in the position of the trial judge in determining the credibility of the witnesses or the weight of the evidence, yet it is our duty to carefully scrutinize the evidence to determine if the trier of the facts had sufficient evidence to find an accused proved guilty beyond a reasonable doubt. We believe the Supreme Court of Illinois has correctly determined the duty of a court of last resort in such cases, as it was stated in People v. Scott, 1950, 407 Ill. 301, 304, 95 N.E.2d 315, 316:

'Lord Hale once aptly observed that an accusation of rape is easily made, hard to be proved and still harder to be defended by one ever so innocent. People v. Freeman, 244 Ill. 590, 91 N.E. 708; 3 Greenleaf on Evidence, sec. 212; 1 Hale's Pleas of the Crown, 634. It is for this reason that reviewing courts are especially charged with the duty to carefully examine the evidence in rape cases. People v. Kazmierczyk, 357 Ill. 592, 192 N.E. 657. It is the further duty of a reviewing court, where a verdict is returned by a jury in a criminal case or where a similar finding is made by a court where a jury has been waived, not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged. People v. Abbate, 349 Ill. 147, 181 N.E. 615.'

Our court in Hutchins v. State, 1894, 140 Ind. 78, 39 N.E. 243, and Eyler v. State, 1880, 71 Ind. 49, reversed convictions for rape, after a careful examination of all the evidence, because from the evidence in behalf of the state is was impossible to find the appellants had been proven guilty beyond a reasonable doubt. In the appeal at bar we have carefully examined all the evidence to make certain, as much as any human agency can, that we do right and justice to appellant as well as the state. As was stated by the majority opinion in Watts v. Indiana, 1949, 338 U.S. 49, 52 69 S.Ct. 1347, 1349, 93 L.Ed. 1801, 1805, 'And there comes a point where this Court should not be ignorant as judges of what we know as men.'

The prosecutrix was ten years old at the time she testified, and without her testimony the charge was not proved under any view of the evidence. This record is wholly silent that the state took any steps whatever to determine the prosecutrix was not a fantast, or was not under the compelling domination of her mother. ² Since the record is silent on this safeguard, we must presume the state did not heed the warning contained in Dean Wigmore's treatise on Evidence (3rd Ed.) Vol. 3, § 924a. He advised that 'No judge should ever let a sex-offence charge go to the jury unless the female complainant's social history and mental makeup have been examined and testified to by a qualified physician.'

'It is time that the Courts awakened to the sinister possibilities of injustice that lurk in believing such a witness without careful psychiatric scrutiny.'

At the conclusion of this section Dean Wigmore, after quoting the writing of numerous psychiatrists, quoted from the report of the American Bar Association's Committee on the Improvement of the Law of Evidence, as follows:

"Psychiatric Examination of Witnesses in Sex Cases. The penalties for sex-crimes are very severe,--justly so, in most cases. But the very severity of the penalty calls for special procedural precautions to protect an innocent accused from condemnation by unreliable testimony.

"Modern psychiatry has already made its bow and been introduced properly to the criminal courts, by way of examining the mental condition of the accused. But there is also a necessity for invoking its aid for a certain type of witness in a certain class of criminal charges.

"Today it is unanimously held (and we say 'unanimously' advisedly) by experienced psychiatrists that the complainant woman in a sex offense should always be examined by competent experts to ascertain whether she suffers from some mental or moral delusion or tendency, frequently found especially in young girls, causing distortion of the imagination in sex cases.

"The imperative nature of this measure is further emphasized by the legal fact that the penalty for intercourse with a girl under sixteen years (so-called 'statutory rape') is extremely heavy--sometimes twenty years; in one State, life imprisonment! Thus the erotic imagination of an abnormal child of attractive appearances may send an innocent man to the penitentiary for life. The warnings of the psychiatric profession, supported as they are by thousands of observed cases, should be heeded by our profession.

"We recommend that in all charges of sex offenses, the complaining witness be required to be examined before trial by competent psychiatrists for the purpose of ascertaining her probable credibility, the report to be presented in evidence." Vol. 3, p. 466.

The evidence given by the prosecutrix discloses she had had considerable coaching. She said she had talked it over with her mother who cautioned her to be sure to tell the truth. She was very indefinite as to the various places she had lived with her parents, and the prosecuting attorney had great difficulty in getting her to make any statement at all placing the venue of the prosecution in Marion County. She told a weird story about her father abusing her in the daytime while he was driving a truck to Cincinnati, Ohio, and another time when she went with her father in the truck to a cleaning establishment in South Bend. She disliked her father for buying Christmas presents for her because he bought them on credit, and she said it was wrong to buy presents on credit. She stated her father 'kidnapped' her mother after he had been arrested for the offense herein charged, and after the mother had filed an action for divorce. There is no credible evidence in this record of any kidnapping, and this idea could only have been implanted by the mother. She testified most of the acts and abuses had occurred while she was sleeping in a bedroom separate from her parents, but that she slept both before and after such abusive conduct, although she struggled and fought and he hit her on the legs, and she cried hard to herself. She never made any complaint to her mother except the time immediately before the father was arrested, and this was not made until one morning when her mother was cooking lunch. Her excuse for remaining silent was her father threatened physical violence to her and her mother. Her mother told appellant several times before the separation that 'he was going to pay for what he did.' This happened whenever they were quarreling. ³ The mother had a medical book in the household the children examined, and she said her father from the book had explained having babies and he was going to make her have one when she got older. The prosecuting attorney was permitted to ask the prosecutrix all sorts of leading questions which were not limited to the details of the abnormal acts charged. The mother was divorced in June of the same year the indictment was returned, and on December 23rd of the same year she remarried. She said she had hated her father ever since she was four years old because he beat her mother and was mean to the children.

The mother testified as to the various places they had lived, and her husband's various assaults and batteries upon her. She said that for two years she had found towels under suspicious circumstances near the bed of the prosecutrix, but never once did she ask the prosecutrix how they happened to be there, or if the father had been abusing her. She told a bizarre story about finding mirrors in her bedroom at night so that her husband, from the prosecutrix's bedroom, could see when she got out of bed. There was no explanation offered as to how he was going to see her from any light about the house. Her incredible story about her husband kidnapping her to take her on...