Eberhart v. State

• Decision Date: 13 June 1893
• Docket Number: 16,868
• Parties: Eberhart v. The State
• Court: Indiana Supreme Court

34 N.E. 637

134 Ind. 651

Eberhart v. The State

No. 16,868

Supreme Court of Indiana

June 13, 1893

From the Clinton Circuit Court.

The judgment is affirmed.

W. R Moore and W. H. Peter, for appellant.

A. G Smith, Attorney-General, O. E. Brumbaugh and J. Combs Prosecuting Attorney, for the State.

OPINION

Howard, J.

The appellant was indicted for the crime of rape, was tried therefor, and found and adjudged guilty.

It is contented that the evidence does not sustain the verdict.

The prosecuting witness, Lettie G. Mohler, was thirteen years of age, past, and for two or three years had been subject to epileptic fits. Her father was a day laborer; while both father and mother were ignorant and credulous, to an extreme degree, though apparently well-minded persons. The girl herself had not gone to school since she had been afflicted with epilepsy, and had gone out nowhere except when accompanied by her father.

Appellant was a pretended traveling doctor, and about fifty years of age. He had traveled over parts of Illinois and Michigan, as well as in this State, professing to cure diseases by charms or spells, but not laying claim to any great medical knowledge.

The parents of the prosecuting witness were advised to make trial of his powers to relieve her of her malady, and called him in to treat her during one of his visits to the neighborhood. His first treatment was to take her to a private room and tie a string of woolen yarn around her person, charging her to tell no one what he had done. She did not tell this to her mother, and the mother did not want to know what the doctor had done when she learned that he told the girl not to tell. This was in December, 1892. In January, and also in February, he came again, and the treatment was repeated. Before the February visit he wrote the following letter to the mother:

"Perth, Ind., Feb. 1, 1892.

"Mrs. Mattie Mohler--This night I received your letter, and would say it would be necessary for me to see her again and sleep in the same room with her now and then. You will see the change, for I make it a point to operate on these cases the third time after night, and, if possible, when the spell is on.

"It is possible that I may see you before Saturday night, and have a room to ourselves.

"Yours truly, Lewis Eberhart.

"Try and get out of her what makes her cry. I am of a notion that her disease is a curse. Does she make any religious profession or not? Look for me, and ask her if she is very anxious to see me or not.

"I will use Latin phrases altogether on behalf of her.

"Yours, L. E."

The parents consented to this astounding proposition. The prosecuting witness slept in a small room down stairs on a couch, while the doctor slept in the same room on a bed. The rest of the family slept up stairs. On the fifth night that they so slept in the same room, he woke her up after she had been some time asleep and called her to his bed, saying he had something to tell her that would cure her of her fits. As soon as she reached his bed, she testifies, he pulled her in and committed the crime charged, she trying, as she says, "to make him quit, but he wouldn't do it."

Her mother and sister-in-law found evidence of the truth of her statement, although at first she refused to tell; because, as she says, the doctor forbid her to say anything about it.

Appellant's counsel say that the crime is not proved because there was no outcry at the time, and there was concealment for a few days afterwards.

In Anderson v. State, 104 Ind. 467, 4 N.E. 63, it is said: "The nature and extent of resistance which ought reasonably to be expected in each particular case, must necessarily depend very much upon the peculiar circumstances attending it, and it is hence quite impracticable to lay down any rule upon that subject as applicable to all cases involving the necessity of showing a reasonable resistance. Ledley v. State, 4 Ind. 580; Pomeroy v. State, 94 Ind. 96; Commonwealth v. McDonald, 110 Mass. 405; 2 Bishop Crim. Law, section 1122."

In the case of Ledley v. State, supra, the court said: "What seemed * * * inconsistent in her conduct, might have been accounted for in the minds of the jury by that species of moral duress which the evidence tends to show that the prisoner exercised over her. She was young, only sixteen, and seemingly artless, wholly inexperienced, and by no means intelligent. * * * Under such circumstances his influence over her must have been great. * * * The jury saw the witnesses and the parties. They have come to a conclusion which, in our view of the case, is perhaps supported by the evidence. * * * Unless we respect such verdicts there would be little hope of bringing the guilty to punishment."

Bishop Crim. Law, supra, says: "Some of the cases, both old and modern, are quite too favorable to the ravishers of female virtue, and ought not to be followed, on this question of resistance. * * * The better judicial doctrine requires only that the case shall be one in which the woman 'did not consent.' Her resistance must not be mere pretense, but in good faith."

In Huber v. State, 126 Ind. 185, 25 N.E. 904 the court held that "The rule does...