Cheek v. State

• Decision Date: 16 October 1908
• Docket Number: No. 21,245.,21,245.
• Parties: CHEEK v. STATE.
• Court: Indiana Supreme Court

171 Ind. 98

85 N.E. 779

CHEEK

v.STATE.

No. 21,245.

Supreme Court of Indiana.

Oct. 16, 1908.

Appeal from Circuit Court, Jay County; J. F. La Follette, Judge.

Thomas Cheek was convicted of crime, and he appeals. Affirmed.

Smith & Moran and S. A. D. Whipple, for appellant. James Bingham, E. M. White, W. H. Thompson, and A. G. Cavins, for the State.

MONKS, J.

Appellant was convicted of the crime of rape on the person of a female child under 16 years of age.

The first error assigned calls in question the action of the court in overruling the motion to quash the indictment. Appellant insists that the indictment charges an assault and battery and rape, and is therefore bad for duplicity. The indictment in Mills v. State, 52 Ind. 187, 192, 193, was substantially the same as the indictment in this case, and was held sufficient against the objection of duplicity. See, also, Richie v. State, 58 Ind. 355.

It is next insisted that the indictment is bad because it does not allege that appellant at the time of the commission of the offense was over the age of 17 years. Section 2250, Burns' Ann. St. 1908 (section 2004, Burns' Ann. St. Supp. 1905, being section 361, Acts 1907, p. 85, c. 60), under which this prosecution was brought, makes no provision in regard to the age of the person charged with rape of a female child under 16 years of age. It is said in 2 Bishop's Crim. Proc. § 954: “Though a boy under 14 is in law incapable of committing rape, no allegation of the age is required; since, as we have seen, the charge against one of having committed a crime includes that of his capacity therefor.” It is evident that the court did not err in overrulingthe motion to quash the indictment. Appellant has assigned as error (2) the giving of certain instructions by the court, and (3) the refusal of the court to give certain instructions requested by appellant. Errors, if any, in giving or refusing to give instructions, can only be presented by a motion for a new trial, assigning therein such alleged errors as causes for a new trial. Being causes for a new trial, no question is presented by assigning the same as independent errors in this court. Wurfel v. State, 167 Ind. 191, 78 N. E. 667;Cline v. Lindsey, 110 Ind. 337, 343, 11 N. E. 441, and cases cited; Raper v. American, etc., Co., 156 Ind. 323, 324, 59 N. E. 937, and cases cited; Bane v. Keefer, 152 Ind. 544, 547, 548, 53 N. E. 834; Elliott's App. Proc. §§ 347, 349, 350; Ewbank, Man. § 44, p. 65; section 134, p. 202.

The third error assigned calls in question the action of the court in overruling appellant's motion for a new trial. Complaint is made by appellant of an alleged ruling of the court excluding a certain paper marked “Exhibit B.” A copy of this exhibit is not set out in appellant's brief, nor has he cited in his brief the page and line where such evidence was offered by him and excluded by the court, and his exception, if any, to such ruling, if made, as required by the rules of this court. It has been repeatedly held by this court that, if the appellant fails to specify the page and line of the record where the ruling excluding or admitting evidence may be found, this court will not search the record to find it, but will treat it the same as waived. Inland Steel Co. v. Smith, 168 Ind. 245, 255, 80 N. E. 538;Providence, etc., Co. v. Wolf, 168 Ind. 690, 704, 80 N. E. 26, 120 Am. St. Rep. 395, and cases cited; Siberry v. State, 149 Ind. 684, 689, 39 N. E. 936;Chicago, etc., R. R. Co. v. Wysor Land Co., 163 Ind. 288, 293, 294, 69 N. E. 546, and authorities cited; Tisdale v. State, 167 Ind. 83, 78 N. E. 324, and cases cited; State v. Windstandley, 151 Ind. 495, 501, 502, 51 N. E. 1054, and cases cited; Elliott's App. Proc. § 440; Ewbank, Man. § 182, p. 277. Newly discovered evidence is assigned as a cause for a new trial. This cause for a new trial was supported by affidavits. The presumption against this cause for a new trial is that a proper effort would have produced such evidence at the trial, and such presumption can only be overcome by a satisfactory showing to the contrary, particularly stating the means employed. Zimmerman v. Weigel, 158 Ind. 370, 372, 373, 63 N. E. 566, and cases cited; Working v. Garn, 148 Ind. 546, 550, 47 N. E. 951. Before a defendant is entitled to a new trial for this cause, he must have used diligence before the trial of the cause to discover and produce the evidence. It is not sufficient to allege that “due diligence was used to discover the evidence,” but the particular facts constituting the diligence must be set out. Skaggs v. State, 108 Ind. 53, 59, 60, 8 N. E. 695, and cases cited; Davis v. Davis, 145 Ind. 4, 6, 7, 43 N. E. 935, and cases cited; McIntire v. Young, 6 Blackf. 496, 39 Am. Dec. 443;O'Dea v. State, 57 Ind. 31;State v. Clark, 16 Ind. 97;Schnurr v. Stults, 119 Ind. 429, 21 N. E. 1089;Hines v. Driver, 100 Ind. 315, 321-324, and cases cited; Ward v. Voris, 117 Ind. 368, 371, 20 N. E. 261, and cases cited; Vandyne v. State, 130 Ind. 26, 29 N. E. 392;Anderson v. Hathaway, 130 Ind. 528, 30 N. E. 638;Pemberton v. Johnson, 113 Ind. 538, 15 N. E. 801;Allen v. Bond, 112 Ind. 523, 530, 14 N. E. 492, and cases cited; Morrison v. Carey, 129 Ind. 277, 28 N. E. 697;Wall v. State, 80 Ind. 146;Ragsdale v. Matthews, 93 Ind. 589, and cases cited; Nordman v. Stough, 50 Ind. 280;Reno v. Robertson, 48 Ind. 106;Hamm v. Romine, 98 Ind. 82-83, and cases cited; Holman v. Langtree, 40 Ind. 349; Thornton's Annotated Civil Code, pt. 1, pp. 813, 814; Gillett's Crim. Law (2d Ed.) § 952, p. 712. The statements in appellant's affidavit on the subject of the diligence used to discover said evidence before his trial are “that he has been confined in the county jail since his arrest”; “that he has had no time or opportunity to prepare for his trial or make a defense to the charge against him”; “that he made all the effort he could to obtain witnesses who could testify to any material fact in his defense”; “that he has exercised all the diligence that he could under the conditions and circumstances.” Such statements are mere conclusions, and are too general and indefinite to show proper diligence to discover said evidence. No particular facts constituting the diligence used, if any, are stated as required by the law applicable to such cause for a new trial. As was said in Allen v. Bond, 112 Ind. 530, 14 N. E. 495: “The facts constituting the diligence used must be stated. The test is: What did the party do in his first effort to procure the evidence he claims to have discovered since the trial? When this is alleged, it then becomes a question for the court to determine whether due diligence was exercised.” If such applicant for a new trial “has made no effort to ascertain or procure such evidence, then he must show such a state of facts as justify and excuse his inactivity.” Ward v. Voris, 117 Ind. 368, 371, 20 N. E. 261, and cases cited. It is evident that said affidavit of appellant neither states any particular facts showing that he used any diligence to procure said evidence before the trial, nor “such a state of facts as would justify or excuse his inactivity.”

Two causes assigned for a new trial are (1) the verdict of the jury is contrary to the law, (2) the verdict of the jury is contrary to the evidence. It is not claimed that there is no evidence to sustain...