Chesterfield v. State, 24210.

Decision Date11 December 1923
Docket NumberNo. 24210.,24210.
Citation141 N.E. 632,194 Ind. 282
CourtIndiana Supreme Court


Appeal from Circuit Court, Clay County; Thos. W. Hutchinson, Judge.

Roy Chesterfield was convicted of assault and battery with intent to rape, and he appeals. Reversed with instructions.Rawley & Baumunk and Knight & Miller, all of Brazil, Ind., and Edward H. Knight, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.


This was a prosecution by the state against the appellant, in which he was charged by affidavit with the crime of rape upon a female child under the age of 16 years.

The charging part of the affidavit alleges that the appellant

“did then and there at and in said county and state, unlawfully and feloniously make an assault in and upon one Grace Shultz then and there being a female child under the age of 16 years, to wit, 13 years of age, and did then and there feloniously and unlawfully ravish and carnally know her, contrary,” etc.

To this affidavit the appellant pleaded not guilty, and upon a trial by jury he was convicted of assault and battery with intent to rape, by a verdict which was as follows:

We, the jury, find the defendant guilty of assault and battery with intent to rape, as charged in the affidavit, and that he is 18 years of age, that he be fined $500 and imprisoned in the state's prison.”

The appellant filed a motion for a new trial, which was overruled. The court thereupon fined the appellant $10, and sentenced him to the Indiana reformatory for not less than five years nor more than 21 years. The appellant then moved the court to modify the judgment, which the court overruled. The appellant assigns as error the overruling of the motion for a new trial, and also the overruling of the motion to modify the judgment.

[1] The first point sought to be made by the appellant relates to the action of the court in refusing to set aside the submission of the cause and discharge the jury, because of alleged misconduct of the prosecuting attorney in asking the witness Clarice Roby an improper question, which action is made a part of the record by a bill of exceptions. The question asked by the prosecuting attorney was as follows:

“And tell the jury whether or not in that conversation Grace Shultz made complaint to you about Roy Chesterfield mistreating her?”

The appellant's objection to this question was promptly sustained. Thereupon the appellant asked that the submission be set aside and the jury discharged.

The court took this motion under advisement until the next day, when he overruled the motion, but instructed the jury that the question was incompetent and should not have been asked, that the jury was not to consider it for any purpose or discuss it or speculate as to what the answer might or might not have been, and generally that evidence excluded and arguments of counsel thereon should not be considered by the jury.

The action of the court in giving this instruction was as favorable an action as the appellant was entitled to. The jury were told in a clear and forcible manner that the question was improper and should not have been asked, and that they were to entirely disregard it. Even if the question had been answered and afterwards the evidence stricken out by the court and the jury admonished to disregard it, the error in admitting it would have been cured, unless it was affirmatively shown that it harmed the appellant. Madden v. State (1897) 148 Ind. 183, 47 N. E. 220. In this case the question was not answered and the court by its instruction to the jury cured any harm that the mere asking of the question may have done.

All but one of the other questions raised by appellant in his motion for a new trial are based upon objections to certain instructions given to the jury by the court.

[2] The appellant did not request any instructions, so, if the instructions given are applicable to the issues and evidence and are correct as far as they go, then no error is shown if they were not as full and complete as the appellant would have been entitled to upon request.

[3] The appellant has not set out in his brief all the instructions given by the court, but only those he questions, so that we would be justified in presuming that any curable error was cured by other instructions. However, we have examined all the instructions that are in the record.

[4] The first instruction questioned is instruction No. 3, which is as follows:

“As I have just intimated to you, the law contemplates the concurrence of the minds of all of the jury in their verdict. The theory and object of the trial by jury is to give the parties to the action the united and conscientious judgment of twelve men. The jury should make an honest effort to bring their minds together, and agree upon a verdict, either of guilty or not guilty, if that can be done without the violation of any of their conscientious opinions, and thus avoid a retrial of the case. You should ever keep in mind, however, that the verdict of a jury should be the result of an intelligent exercise of the reasoning powers and the judgment of twelve men, in an honest desire to arrive at the truth. As long as any member of the jury entertains a reasonable doubt as to the guilt of the defendant, he should refuse to agree to a verdict of guilty, and there can be no conviction. On the other hand, as long as any member of the jury believes and is convinced beyond a reasonable doubt, from the entire evidence, that the defendant is guilty, as charged in the affidavit, he should refuse to agree to a verdict of not guilty, and there can be no acquittal. In every trial by jury in the circuit court, be it in a civil or in a criminal action, all of the jury must agree thereto before a verdict can be returned into court.”

The appellant's objection to this instruction is that it told the jury that, as long as any member of the jury believes and is convinced beyond a reasonable doubt, from the entire evidence, that the defendant is guilty as charged in the affidavit, he should refuse to agree to a verdict of not guilty; the appellant claiming that this instruction limits the jury to a consideration of the evidence alone, instead of the law and the evidence.

In this instruction the court was referring to the question as to whether the appellant did or did not do the act charged, which the jury is to determine from all the evidence, and, if the evidence proved beyond a reasonable doubt that he did commit the acts charged, he was guilty.

The court, in instruction No. 24, told the jury that, if they believed all the elements of the alleged crime charged in the affidavit had been proven beyond a reasonable doubt, and that, if they further believe “that these facts, under the law of the state of Indiana, constitute a crime as charged in the affidavit, then it will be your duty to convict,” etc.

In several other instructions the jury were told, in substance, that they were bound by the law and were to determine what the law was, and that, when they had determined the law, it was their duty to follow the law as they found it to be.

The instruction being considered is substantially in the language of many instructions which have been approved by this court in numerous decisions, and is not open to the objection urged against it. Harris v. State (1900) 155 Ind. 265, 271, 58 N. E. 75.

The court gave several other instructions on the question of reasonable doubt, all as favorable to the appellant as the law justified, and, as he requested none himself, he should not complain.

[5] The appellant also urges that this instruction (No. 3) erroneously emphasized the facts “charged in the affidavit,” claiming that the jury may have been led to consider the affidavit as evidence of guilt. We find, by an examination of the record, that in instruction 4 the jury was expressly told the affidavit was not evidence and was not to be considered by it as such. The instruction is not open to this objection.

[6] The appellant next questions instruction No. 7, in which the court told the jury that the charge of rape included also the charge of assault and battery with intent to commit rape and assault and battery. The appellant objects because the jury was not told of all the crimes of lesser degree than rape that were included in the charge of the completed crime. The appellant not having requested any instruction on this question, he cannot complain if the instruction was incomplete. Reynolds v. State (1897) 147 Ind. 3, 46 N. E. 31.

[7] The appellant next complains of instructions Nos. 11 and 20, in each of which the jury were told, in substance, that if they found the prosecuting witness was a female child under 16 years of age and that the defendant had sexual intercourse with her, they should find him guilty, and that whether she consented or not to such act or made any resistance was immaterial, and that the element of force had no application in this case.

The appellant's objection to these instructions is based upon an erroneous construction of section 2250, Burns' Supp. 1921. The appellant contends that, by section 2250, Burns' Supp. 1921 (Acts 1921, p. 373), the question of force and consent is made material and a necessary element in every case where an assault and battery is committed with intent to have carnal knowledge of a female, regardless of her age, and that, as that charge was included in the charge in this case, the question of force and consent was material as to that. Said act of 1921 re–enacted the statute defining rape, substantially as it had existed for many years, and provided a more severe penalty, to wit, imprisonment from 5 to 21 years and a fine not exceeding $1,000, and life imprisonment where the female is a child under 12 years of age.

Said act defines rape as follows:

“Whoever unlawfully has carnal knowledge of a woman forcibly against her will, or of a male or female...

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