Butler v. State

• Decision Date: 27 March 1951
• Docket Number: No. 28702,28702
• Citation: 97 N.E.2d 492,229 Ind. 241
• Parties: BUTLER v. STATE.
• Court: Indiana Supreme Court

Page 492

97 N.E.2d 492

229 Ind. 241

BUTLER v. STATE.

No. 28702.

Supreme Court of Indiana.

March 27, 1951.

Lawrence C. Ammon, Indianapolis, J. Creighton Ball, Danville, for appellant.

J. Emmett McManamon, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen., John R. O'Connor, Deputy Atty. Gen., for appellee.

DRAPER, Judge.

The appellant was charged by way of a grand jury indictment with raping a seven year old female child. See Burns' 1942 Repl. § 10-4201. He waived jury trial, was tried by the court, and sentenced to a term of life imprisonment.

To reach the merits we must overlook certain procedural defects and the shortcomings of appellant's brief. Because of the nature of the offense charged and the severity of the penalty imposed, we shall consider and decide each question attempted to be raised by the appellant.

The appellant filed a motion for change of venue from the county based on general excitement, bias and prejudice alleged to exist against him in Hendricks County. The motion was overruled. In a case not punishable by death, the granting of a change of venue from the county in a criminal case is discretionary with the court. Burns' 1942 Repl. § 9-1305. Unless there is an abuse of such discretion, the ruling of the trial court will not be disturbed. Brattain v. State, 1945, 223 Ind. 489, 61 N.E.2d 462; Sammons v. State, 1936, 210 Ind. 40, 199 N.E. 555. No showing of general excitement, bias or prejudice was made or attempted to be made over and above the filing of the verified motion for change of venue, which was in the usual form. We have examined the record with great care, and can find nothing even slightly supportive of appellant's assertion that a situation existed under which the refusal of a change of venue from the county amounted to an abuse of discretion.

At the time of trial the child was seven years old. She was permitted to testify concerning the appellant's conduct toward her on the date in question and on several previous occasions. By statute in this state children under ten years of age are not competent witnesses unless it appears that they understand the nature and obligation of an oath. Burns' 1946 Repl. § 2-1714. In this case it appears that the child attended church and Sunday school about twice a month. She said she knew what it meant to tell the truth and understood that if she did not tell the truth the court would have to punish her; although she did not know what punishment would be inflicted. On direct examination she said she answered 'yes' when the court 'told all the witnesses to stand up and tell the truth.' On cross-examination, in answer to a leading question, she said she did not say anything when the court 'gave the oath and asked the witnesses to tell the truth.' The bill of exceptions, approved and signed by the trial judge, and filed by appellant, shows that she was duly sworn to testify the truth, the whole truth, and nothing but the truth. We cannot say that she was not properly sworn as a witness. We have carefully read the transcript. Her testimony, while extremely damaging to the appellant, was clear and direct, and her answers were responsive to the questions put to her. The grave responsibility for determining the competency of a child as a witness rests on the trial court. He alone has the opportunity to observe the child's attitude, appearance and manners, and judge of her intelligence and candor. When the trial court determines that a witness is competent, it would require a case of manifest abuse of discretion to authorize this court to interfere. Tyrrel v. State, 1912, 177 Ind. 14, 97 N.E. 14; Batterson v. State, 1878, 63 Ind. 531. We hold that the court did not err in hearing and according to her testimony such weight and credit as it seemed to merit.

During the progress of the trial the appellant orally moved for a continuance to procure the testimony of a Mr. Hadley. The trial court was not informed as to the nature of the testimony which appellant expected him to give. Applications for continuance are addressed to the sound discretion of the court, and it is not error for a trial court to refuse an application for a continuance where the evidence sought is not shown to be material to the case being tried. Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349; Smith v. State, 1892, 132 Ind. 145, 31 N.E. 807. Mr. Hadley's name had been mentioned several times during the trial in a context which revealed that his testimony, if available, would be entirely collateral to the issue of appellant's guilt or innocence. It would necessarily have been hearsay except as to one fact which, whether true or not, could hardly have affected the result.

A motion was made and granted to separate the witnesses, but the little girl was permitted to remain in the courtroom with her mother. One rebuttal witness heard all of the testimony in the case, and several rebuttal witnesses were...