Byassee v. State

• Decision Date: 26 August 1968
• Docket Number: No. 767S46,767S46
• Citation: 239 N.E.2d 586,251 Ind. 114,15 Ind.Dec. 234
• Parties: Wilbur G. BYASSEE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 586

239 N.E.2d 586

251 Ind. 114

Wilbur G. BYASSEE, Appellant, v. STATE of Indiana, Appellee.

No. 767S46.

Supreme Court of Indiana.

Aug. 26, 1968.

Rehearing Denied Oct. 25, 1968.

Palmer K. Ward, Indianapolis, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Robert F. Hassett, Deputy Atty. Gen. of Indiana, for appellee.

LEWIS, Chief Justice.

This is an appeal from a conviction entered on the verdict of a jury from an indictment returned by the Marion County Grand Jury. Appellant was charged with the crime of assault and battery with intent to commit a felony, to wit: Rape, pursuant to Burns' Indiana Statutes, Anno., (1968 Supp.), § 10--401.

Appellant's sole assignment of error is the Trial Court's refusal to grant a new trial on the basis that there was insufficient evidence to support the verdict.

There are two material elements of the offense charged:

'* * * To make out a case of assault or assault and battery with the intent to commit the crime of rape, as chargd, it was necessary to prove beyond a reasonable doubt that appellant committed an assault or an assault and battery, as charged, and that the same was committed with the intent then and there and thereby unlawfully to have carnal knowledge of the prosecuting witness 'forcibly against her will.' Hollister v. State (1901), 156 Ind. 255, 258, 59 N.E. 847, 848.' Rahke v. State (1907), 168 Ind. 615, 81 N.E. 584.

In determining the question of sufficiency of evidence when raised properly on appeal, this Court, as it has stated innumerable times, will consider only that evidence most favorable to the State, together with all reasonable and logical inferences that may be drawn therefrom. Widup v. State (1967), Ind., 230 N.E.2d 767; Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537. It is equally clear that it is not within the scop of this Court's review to invade the province of the jury and attempt to determine the credibility and demeanor of the witnesses or weigh any conflicting evidence. Beatty v. State (1963), 244 Ind. 598, 195 N.E.2d 727; Martin v. State (1964), 246 Ind. 43, 201 N.E.2d 42. As a result, this Court will not disturb the verdict of the Trial Court on the basis of insufficiency of evidence unless there is an absence of substantial evidence of probative value on a material element of the offense or the evidence is without conflict and leads to but one reasonable conclusion, which is contrary to the conclusions of the jury. Widup v. State, supra; Weaver v. State (1963), 243 Ind. 560, 187 N.E.2d 485.

It is in light of this wisely limited scope of review that we consider the evidence placed before the jury. On February 14, 1964, about 6:15 in the morning, the prosecutrix, who was then 20 years old, was standing at an unlighted city intersection waiting for a bus to ride to work. She had noticed appellant's car parked on the opposite side of the intersection, and heard him make some remark to her about her legs. Appellant moved behind her on foot without attracting her attention, stepped in front of her, and as he pinned both of the prosecutrix's arms to her side, stated, 'Why don't you come with me?' The girl informed the appellant that she didn't know him and asked him to leave her alone. The alleged attacker, however, repeated his 'invitation' and then, upon a second refusal, began to force the girl toward his automobile. A struggle ensued in which the appellant struck the prosecutrix at least eight times in the face, both to force her into the auto and to quiet her screams. He threatened her with choking if she continued to cry out. After successfully managing to imprison the girl in the car, appellant drove the vehicle about four (4) blocks from the scene of his intrusion. At this point the prosecutrix managed to open the car door and escape momentarily; however, she was recaptured by her attacker and dragged by the neck back to the...