Diblee v. State

• Decision Date: 21 July 1931
• Docket Number: No. 25070.,25070.
• Citation: 202 Ind. 571,177 N.E. 261
• Parties: DIBLEE v. STATE.
• Court: Indiana Supreme Court

202 Ind. 571

177 N.E. 261

DIBLEE

v.STATE.

No. 25070.

Supreme Court of Indiana.

July 21, 1931.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Kenneth Diblee, whose true name is Kenneth Dibblee, was convicted of attempted rape of a woman, and he appeals.

Reversed and remanded, with direction.

McMahon & Conroy, of Hammond, for appellant.

TRAVIS, J.

Appellant appeals from the judgment upon him of a fine, and imprisonment for not less than five nor more than twenty–one years in the Indiana Reformatory, upon a verdict that he is guilty of attempted rape of a woman. (Acts 1921, c. 148, p. 373, section 2250, Burns' Ann. St. Supp. 1921, section 2429, Burns' Ann. St. 1926.)

The assigned errors of law are presented by four propositions, the first two of which relate to two instructions to the jury, which were tendered to the court by appellant and refused; the third related to admission of evidence by appellee over the objection by appellant, and the fourth related to the denial by the court of the request by appellant, that the jury be admonished concerning the law which pertained to the evidence introduced over appellant's objection, immediately after the objectional evidence was admitted. This appellant's fourth proposition need not be considered or answered, because the same question of law is presented by the second proposition, which relates to one of the requested instructions.

[1][2][3] By his first proposition, appellant says the court erred in refusing to give to the jury his requested instruction No. 5, viz.:

“Evidence has been introduced as to the moral character of the said Clemencia S. Martinez (the prosecutrix) as to her reputation for chastity. This evidence is competent evidence for two purposes: First, it is evidence for the jury to consider together with all the evidence in this case for the purpose of affecting her credibility as a witness and a circumstance to aid you in determining what weight or credit you would or should attach to her testimony, and

“Second, it is competent evidence for the jury to consider, as a circumstance, together with all of the other evidence in the case, to determine, whether or not said Clemencia S. Martinez, assented or consented, to sexual intercourse, if any was had, and as charged.”

The appellant presents the point that, inasmuch as he is charged with the crime of rape upon the prosecuting witness, which act is alleged to have been forcibly done, and against her will, the element of consent was material. The instruction was based upon and concerned the evidence by both parties to the action which appertained to the moral character of the woman upon whom the crime is alleged to have been committed. Answering this proposition, appellee says that the substance of appellant's requested instruction No. 5 was contained in other instructions given by the court to the jury. The instructions so mentioned are general; they instruct as to the law to determine the weight of the evidence; the right to disregard evidence; the element of force against consent which must be found from the evidence to have been committed without the woman's consent and against her will; the credibility of witnesses; and last the judgment ought not to be reversed for technical errors, which did not prejudice the substantial rights of the defendant. Upon examination of the court's instructions, mentioned by appellee, it appears that none of them refer to the evidence concerning the moral character of the woman, or to her reputation for chastity. None of the court's instructions referred to by appellee present the law stated by the second part of the requested instruction. But, granting for the sake of appellee's argument that the first part of the requested instruction was presented to the jury by the court's instructions, inasmuch as the court's instructions were general in character, they could not obviate in law the right of the accused to have given a specific instruction of the law to the jury. Fahnestock v. State (1864) 23 Ind. 231;Hipes v. State (1880) 73 Ind. 39, 41;Anderson v. State (1885) 104 Ind. 467, 471, 4 N. E. 63, 5 N. E. 711;Dunn v. State (1906) 166 Ind. 694, 701–702, 78 N. E. 198.

The second part of this instruction pertained to the law of consent to the act. The element of force against the will of the female person is a material element of the crime charged. Appellant's right is to have a specific instruction given to the jury upon this element and to the evidence pertaining thereto. The evidence upon the point made by the instruction was in sharp conflict. This evidence was a proper subject for a specific instruction which related to it. It was harmful error to refuse the instruction. Carney v. State (1889) 118 Ind. 525, 21 N. E. 48.

This requested instruction had relation to a fundamental element of the crime charged, which obviates appellee's point under the statute that technical errors ought not to defeat the judgment. (Section 2394, Burns' Ann. St. 1926) Sutherlin v. State (1897) 148 Ind. 695, 704–705, 48 N. E. 246.

[4][5][6][7] By his second proposition, appellant says the court erred in refusing to give to the jury his requested instruction No. 6, viz.:

“The jury are instructed that statements of the witness, Clemencia S. Martinez, testified to by a third party in the presence of the defendant, are not evidence of the truth of the facts, if they are facts, stated by such witness or witnesses, but are only competent to explain and account for the defendant's conduct and statements, if any, in response to alleged statements, touching the crime charged, if at all.”

Appellant and two other young men, Parker and Dunfee, were arrested in the evening of the day the crime is alleged to have been committed, and were taken to the police station. Later the prosecutrix, under request by the police officer, in the presence and hearing of the three young men, and in the presence of the chief of police and other police officers, related her story of the alleged crime, to the effect that appellant, with the assistance of Parker and Dunfee, had raped her that day in an automobile, in which she had been riding with them as a gratuitous passenger. Appellant and the two others were under arrest and in custody of the police officers at the time the prosecutrix related her story of the acts of each of the three.

At the trial the state was permitted by the court, over appellant's objection, to put in evidence the testimony of one of the police officers, in substance, that he had been present in the evening at the police station at the time the prosecutrix had related the story of the crime in the presence of the three young men, and that her testimony upon the trial of this case of what she had related in the evening at the police station to the officers and in the presence of the three young men was the same story she had related on that occasion. The policeman's testimony, under the most liberal application to the elements of the crime charged, could not be received for the purpose to prove that what the prosecutrix said in the evening in the police station was true; he was not present when the alleged crime was committed. As to such proof, his evidence was hearsay. The sole purpose of the policeman's testimony of what was said by the prosecutrix at the time and place mentioned is to prove that she then and there related to be the facts of the commission of the alleged crime, which was admissible to lay a foundation for evidence of the conduct of the accused and his statements in reply to the accusation. The force of such evidence is to prove by the conduct and statements of the accused an admission of a fact or facts so related. The jury were not instructed what the law was concerning the limit of the application of such evidence. It was accused's right to have the jury instructed what was the law applicable to the pleading which charged the crime and to the evidence, and specifically the law of the limitations of evidence, when he so requested. The requested instruction is pertinent to the evidence. It correctly stated the law. The action of the court refusing appellant's requested instruction No. 6 is reversible error. Rex v. Christie, [1914] Law Reports 545, 553–554; Comm. v. Trefethen (1892) 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235, 240;People v. Conrow (1911) 200 N. Y. 356, 367, 93 N. E. 943; Wharton's Crim. Ev. (10th Ed.) § 679, p. 1405.

[8][9] Appellant's third proposition for reversal of the judgment is based upon the admission of evidence over objection. The witness was a police officer. The setting was the police station after 8 o'clock in the evening. The appellant and the two others were at the time under arrest and in the custody of police officers in the police station. The three young men were brought from the cells in the police station into the office of Chief Bunde and there in the presence of Chief Bunde, Police Officers Fandrai and Singer, were confronted by the prosecutrix. The court stated to the police officer witness, “Just state what was said and done by anybody and everybody there.” The prisoner's objection is that he was the only defendant on trial, and that he “would not be bound by any statement or admission, on the theory that it is evidence to show conduct of the defendant as evidence of consciousness of guilt”; and further that defendant “was under arrest and under no obligations to speak, and at this stage of the evidence it does not appear whether there was any unequivocal denial.” Witness Singer answered, ...