Cosilito v. State, 24967.

• Decision Date: 19 March 1926
• Docket Number: No. 24967.,24967.
• Citation: 197 Ind. 419,151 N.E. 129
• Parties: COSILITO v. STATE.
• Court: Indiana Supreme Court

197 Ind. 419

151 N.E. 129

COSILITO

v.STATE.

No. 24967.

Supreme Court of Indiana.

March 19, 1926.

Appeal from Superior Court, Elkhart County.

James Cosilito was convicted of statutory rape, and he appeals. Affirmed.

Hawley O. Burke, of Elkhart, for appellant.

Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the State.

GEMMILL, J.

In this case, the appellant, who was also named as Vincenzo Cosilito, was charged by affidavit with the crime of rape upon A. D., a female child under the age of 16 years. He was found guilty by a jury, and the court adjudged that he be fined $1,000, be imprisoned for a period of not less than 5, nor more than 21, years, and pay the costs of the action. He has appealed from the judgment. In the preparation of appellant's brief, rule 25 of this court has been violated in three particulars. We would be justified in striking the brief from the files, but we refrain from doing so, because of the seriousness of the judgment and the good-faith effort of appellant's counsel to comply with the rules in the earnest presentation of his cause.

[1][2] The first assignment of error is that the court erred in overruling appellant's motion for leave to withdraw his plea of not guilty. He desired to withdraw said plea for the purpose of filing a motion to quash the affidavit. As ground for the motion, he stated that he had not been furnished with a copy of the affidavit at the time of the arraignment. In the absence of a showing of cause, the granting or withholding leave to withdraw a plea of not guilty rests in the discretion of the trial court. Epps v. State (1885) 1 N. E. 491, 102 Ind. 539. In section 2226, Burns' 1926, it is provided that, whenever requested by the accused or his counsel, the clerk of the proper court shall make and deliver to the accused a copy of the indictment or affidavit, if the person accused has been arrested. In appellant's motion it is not shown that any request had ever been made for a copy of the affidavit. As no cause was shown, the court did not abuse its discretion in overruling said motion.

[3] The second assignment of error is that the court erred in sustaining appellee's objection to the filing of appellant's motions to strike out certain words in the affidavit. This specification is not supported by argument or the citation of authorities, and this failure causes same to be waived.

Overruling appellant's motion for a new trial is assigned as error. Thirty-four reasons for same were given, several of which are not now relied upon for reversal. It is claimed that the record does not show that appellant was ever arraigned or entered his plea to the charge. The record has been corrected by certiorari, and it now appears from same that the appellant waived arraignment and entered a plea of not guilty.

[4][5] It was proved that the prosecuting witness was pregnant. On this subject, appellant tendered his instruction No. 19 as follows:

“You are instructed that the only purpose of admitting testimony as to pregnancy of prosecuting witness is to corroborate the statement of the prosecutrix that she had sexual intercourse at a certain time. Proof of pregnancy does not of itself prove the charge of rape, nor does it ever tend to prove that the accused was the person with whom prosecutrix had sexual intercourse.”

The court refused to give same. Evidence of pregnancy is properly admitted in a prosecution for rape, since pregnancy is evidence of intercourse, and intercourse is one of the constitutive elements of the offense charged. State v. Kelly (1912) 150 S. W. 1057, 245 Mo. 489, 43 L. R. A. (N. S.) 476;Commonwealth v. Duff (1923) 139 N. E. 351, 245 Mass. 81;State v. McPadden (1921), 184 N. W. 568, 150 Minn. 62; 22 R. C. L. 1202, § 37. In the instant case there was proof that the prosecuting witness was under the age of consent, being of the age of 12 years; that she had lived in Elkhart for 5 years, had known appellant, and had visited his store for almost 10 months. The evidence of the physicians that she was pregnant showed that some one had held illicit relations with her at an unlawful age, and that some one had committed the crime of rape upon her. The statement in the instruction, viz. “Proof of pregnancy does not of itself prove the charge of rape,” is not true as to this case. The last clause of the instruction was correct. As part of the instruction did not state the law, the court did not err in refusing to give same. On this subject, the court gave an instruction on its own motion, to which no objection was made in the motion for a new trial. That instruction is not before us for consideration.

[6][7] Instruction No. 5, tendered by the appellant and refused by the court, informed the jury that they were the sole and exclusive judges of the weight of the testimony; that the court had no right and would not express an opinion as to the weight of the evidence; that it was the duty of the court to advise as to the law; and then advised the jury as to the measure of proof required when the evidence was largely circumstantial. The essential parts of this instruction are covered by instructions given by the court on its own motion. In this connection appellant objects to part of the court's instruction No. 9. We cannot consider...