Daveros v. State, 25541.
| Decision Date | 28 April 1933 |
| Docket Number | No. 25541.,25541. |
| Citation | 185 N.E. 443,204 Ind. 604 |
| Parties | DAVEROS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
Joe Daveros was convicted of rape upon a female child under 12 years of age, and he appeals.
Reversed, with instructions.
Geo. P. Rose, of Gary, for appellant.
Arthur L. Gilliom and Harry L. Gause, both of Indianapolis, for the State.
Appellant, by affidavit, was charged, and upon trial before a jury was convicted, of rape upon a female child under twelve years of age. Section 2429, Burns' 1926. Motion for a new trial was overruled, and this action of the trial court is assigned as error.
Appellant insists that the verdict of the jury was not sustained by sufficient evidence. He does not particularize by referring to the element or elements essential to constitute the offense that is unsupported by the evidence. He makes the statement, in effect, that if the court would examine the evidence, its conclusion must be that there is “not enough evidence to make a case for the State of Indiana beyond a reasonable doubt.” In support of that insistence he says that the testimony of the prosecuting witness should be closely scrutinized. This same thought is expressed by Underhill, in his work on Criminal Evidence (3rd Ed.) § 617. However, in this same section he says: “But it would seem that in the absence of statute the credibility of her evidence should be left wholly to the jury as in other cases.” He was speaking of this class of cases in the trial court, although he does refer to one case on appeal where, upon a consideration of the entire evidence, the judgment below was reversed. State v. Goodale, 210 Mo. 275, 109 S. W. 9, 13. We have read the official report of that case. It was an extraordinary one on the evidence. The court on appeal, contrary to former rulings (State v. Alexander, 184 Mo. 266, 83 S. W. 753), was induced to weigh the evidence because of its exceptional character, and, on the part of the prosecutrix, it declared that her testimony was “an unnatural and unreasonable story, wholly unsupported, as it is, by any fact or circumstance corroborating it.” In this jurisdiction there is no statute nor established rule of evidence requiring corroboration of the prosecutrix. Chesterfield v. State, 194 Ind. 282, 141 N. E. 632;Cosilito v. State, 197 Ind. 419, 151 N. E. 129. The likelihood of her story or the credibility of her testimony, as in other cases, is a question to be considered and determined by the jury and trial court. The adoption by this court of appellant's suggestion would require us to weigh the evidence, which the settled law prohibits us from doing. Ginter v. State, 189 Ind. 672, 676, 128 N. E. 834.
We fully appreciate appellant's endeavor to have us weigh the evidence in this case on the theory that the verdict was the result of undue influence or from sympathy for the prosecuting witness. We have read the entire evidence recited in appellant's brief, and also from the record, without finding any remarkable state of affairs justifying the conclusion that the verdict in this case was unduly influenced or that it was the result of sympathy. It is true, as said in Ginter v. State, supra, page 677 of 189 Ind., 128 N. E. 834, 835, “that the charge of rape is sometimes easy to make and hard to disprove; but, even if the jury is misled by passion and prejudice, we must presume that the trial judge, who passed upon a motion for a new trial, carefully considered the evidence to determine whether the jurors could reasonably have found as they did.” This is not a case where the judgment on the evidence should be disturbed. Vancleave v. State, 150 Ind. 273, 275, 49 N. E. 1060.
Appellant also claims error in the court's refusal to give each of his tendered instructions, Nos. 5, 11, 12, 14, and 15. Tendered instruction No. 5 would have told the jury that the defendant in a criminal case is not required to satisfy the jury of the existence of any fact which, if true, is a defense. This instruction might have been properly given, but since the court, by its instruction No. 5, fully covered the subject, it was not error to refuse it.
Instruction No. 11 follows:
The principal objection urged against this instruction by the Attorney General is that it is “meaningless and impossible to be understood by the jury.” The assertion of the Attorney General is not well taken. While it is true the proposition of law contained in the instruction might have been more clearly stated, yet we doubt if there was a single juror, if he gave attention, that would not have understood the instruction to mean that evidence showing appellant's conviction of other offenses was admitted only for the purpose of affecting the credibility of his testimony and should not be considered by the jury as evidence tending to prove the charge for which he was then being tried. On cross–examination appellant admitted that he had been previously convicted of violating the liquor law; that he had been convicted and served a term on the Indiana State Farm for having had sexual intercourse with a girl then rooming at a house of prostitution. Neither of these convictions had any relation to the charge for which he was being tried. They were convictions for distinct offenses and were in no way connected with any evidence so closely related to the issue on trial as to make such evidence admissible for the purpose of showing motive, intent, or guilty knowledge. Since the court failed to inform the jury of the limited...
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