Davis v. State

• Decision Date: 17 January 1968
• Docket Number: No. 31053,31053
• Citation: Davis v. State, 232 N.E.2d 867, 249 Ind. 373 (Ind. 1968)
• Parties: Robert E. DAVIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 867

232 N.E.2d 867

249 Ind. 373

Robert E. DAVIS, Appellant, v. STATE of Indiana, Appellee.

No. 31053.

Supreme Court of Indiana.

Jan. 17, 1968.

Robert G. Mann, Bolden & Mann, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was tried and convicted, in a trial to the court, of assault and battery with intent to rape, as defined by Burns' Ind.Stat.Anno. § 10--401 (Supp.1967). Two main contentions are made. The first is that the appellant was denied the right to counsel for the purpose of filing a motion for a new trial. The record shows in this particular that the appellant on July 26 1966, more than thirty days after the finding of guilty, filed his pro se motion for a new trial based upon the specifications that the verdict was contrary to law and not sustained by sufficient evidence.

The record further shows that counsel was appointed for the appellant to appeal and thereafter, on the 27th day of September, 1966 filed a petition for permission to file a belated motion for a new trial and therewith tendered a belated motion for a new trial. The court, on October 4, 1966 held a hearing thereon and found specifically that his counsel at the trial was deligent and properly prepared and tried his case, contrary to the allegations in the petition for permission to file a belated motion. The court found specifically that his counsel did confer with him more than once prior to trial, contrary to appellant's contention. The court further made an order permitting the appellant to file a motion for a new trial, even though the time had elapsed therefor, and thereby extended the time for the filing of the same.

It appears further from the record that appellant has had counsel for appeal and also for the purpose of filing and presenting a petition for a belated motion for a new trial; that the appellant has had a hearing on that petition, with counsel, and counsel has had an opportunity to raise any question of error in that regard. We find that the appellant has shown no prejudice or error in the actions of the trial court with reference to filing a motion for a new trial or a belated motion for a new trial for presentation of error to this court.

Examining the motion for a new trial and the belated motion for a new trial and the finding of the court thereon, we find the only questions raised and remaining for consideration on this appeal are that the finding of the court is contrary to law and not sustained by sufficient evidence. For that purpose we must review the evidence favorable to the State. Fisher v. State (1966), Ind., 219 N.E.2d 818; Ponos v. State (1962), 243 Ind. 411, 184 N.E.2d 10.

The evidence shows that Mrs. Gladys Mabe, the prosecuting witness, and the appellant had different rooms in the same rooming house in Indianapolis. On the date in question the appellant was helping Mrs. Mabe fix shades in her room. After he fixed the shades he grabbed her and shoved her on the bed. He unfastened his pants and his penis was out. She was screaming and crying. She received bruises on her face and arms. The appellant first contends that the prosecuting witness was emotionally unstable and that she was 65 years of age, and urges upon us that we should consider the credibility of her testimony. He urges Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641 as authority on that proposition. We have a number of times, regardless of what may have been broadly stated in that case, held that we will not, on appeal, weigh or consider the credibility of witnesses. To that extent, with reference to any such statements in that case, the same is disapproved. Stock v. State (1966), Ind., 219 N.E.2d 809; Anderson v. State (1966), Ind., 217 N.E.2d 840; Willoughby v. State (1966), Ind., 214 N.E.2d 169; McDonough v. State (1961), 242 Ind. 376, 175 N.E.2d 418.

We point out further in this case that the testimony of the...