Coleman v. State

• Citation: 13 N.E. 100, 111 Ind. 563
• Case Date: September 27, 1887
• Court: Supreme Court of Indiana

111 Ind. 563
13 N.E. 100

Coleman
v.
State.

Supreme Court of Indiana.

September 27, 1887.

Appeal from circuit court, Jasper county.

Edwin P. Hammond and Mordecai & Chilcote, for appellant. L. T. Michener and R. W. Marshall, for appellee.

Mitchell, J.

Coleman was tried in the Jasper circuit court, and sentenced to two years' imprisonment, for having feloniously assaulted one Ida Ream, with intent to commit a rape upon her person. The error assigned brings before us the propriety of the ruling of the court in overruling the appellant's motion for a new trial. As the learned counsel for the appellant suggest, the case is somewhat peculiar, in that the person upon whom the injury is alleged to have been committed does not appear to have been examined as a witness. It is, however, beyond successful dispute, that the verdict is well supported by other competent evidence. It may be inferred from the record that the state sought, without success, to obtain a continuance on account of the absence of the prosecutrix. That the appellant, without right, invaded the room in which the prosecutrix was pursuing her work as chamber-maid, and that he made an indecent proposal to, and perpetrated an unlawful assault upon her, is scarcely denied. There was testimony to the effect that he was seen violently struggling with the girl, thrusting one hand under her garments, the other one about her neck, while with his hand he tried to cover her mouth, so as to prevent her from making outcry. Her resistance and outcries attracted the attention of others, one of whom witnessed the parties in the struggle, and whose presence when observed, caused the appellant to desist. The girl left the room crying. That the appellant's purposes in intruding into the room were lecherous is not denied, and it is not at all surprising that the jury refused to adopt the theory that what he did was merely with a view to persuade the prosecutrix to yield to his lustful passion. There

[13 N.E. 101]

was an unlawful assault upon the prosecutrix, who resisted from the beginning, and made outcry. The jury drew the inference, as well they might, from the evidence, that the assault was made with the felonious intent to have carnal knowledge of the girl, by force and against her will, if it became necessary to the accomplishment of his purpose that force should be employed. We cannot disturb the finding on the evidence.

It appears from a bill of exceptions that, in making the opening statement of the case, the prosecutor used the following language in addressing the jury: “You should watch the evidence closely. We do not know that the defendant will go upon the stand. He has not been sworn. I noticed that. If he should go upon the stand, you should watch-” At this point counsel for the defendant objected, and excepted to the statement so made. The court sustained the objection, whereupon the prosecutor said: “Very well, under the ruling of the court, I will suspend further remarks on that subject, and I withdraw the statement from the jury.” The bill of exceptions also recites, and the record shows, that the defendant subsequently testified as a witness in his own behalf. For the appellant it is contended, with much force and plausibility, that in using the language above set out the prosecutor was guilty of such misconduct as constituted incurable error, which was not waived, notwithstanding the defendant proceeded to the end of the trial without further objection, and without exception to any adverse decision of the court involving the alleged misconduct of the prosecuting attorney. Section 1798, Rev. St. 1881, provides, among other things, that a defendant in a criminal case shall be a competent witness, and that, if he “do not testify, his failure to do so shall not be commented upon, or referred to in the argument of the cause, nor...