Eckert v. State

• Decision Date: 18 March 1926
• Docket Number: No. 24712.,24712.
• Citation: 197 Ind. 412,151 N.E. 131
• Parties: ECKERT v. STATE.
• Court: Indiana Supreme Court

197 Ind. 412

151 N.E. 131

ECKERT

v.STATE.

No. 24712.

Supreme Court of Indiana.

March 18, 1926.

Appeal from Huntington Circuit Court.

On petition for rehearing. Petition overruled.

For former opinion, see 147 N. E. 150.

Charles R. Haller, of Huntington, for appellant.

U. S. Leah, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

EWBANK, C. J.

The only question presented for consideration by the assignment of errors and the “points” in appellant's brief, and the only question discussed in the brief, was whether or not there was evidence sufficient to prove that appellant committed an assault and battery on a girl 14 years old, in Huntington county, Ind., with the intent to commit rape. The prosecuting witness and her girl companion both testified that appellant had sexual intercourse with her just after dark, on the evening of June 3d, 1923, in the inclosed back part of a Ford delivery truck, while it was stopped at the side of the road a few miles from where they lived, at Andrews, Ind., which is in Huntington county. The boy who drove the truck testified positively that the place where it was stopped was in Wabash county (though denying that any intercourse took place there), and both the girls admitted, on cross-examination, that they had driven across the line into Wabash county before the act was consummated. But the undisputed evidence was that appellant and the prosecuting witness climbed into the back part of the delivery truck at about 6 o'clock in the evening of that day, that the rear doors were then closed and fastened, completely shutting them in, and that they sat on the floor of the car, back there, while it was driven north and then west to a point some distance from Andrews. And the prosecuting witness testified that at that time appellant put his arm around her, before they had reached the interurban station at Andrews, that they drove north two squares and during that time he continued to have his arm around her and put his hand on the calf of her leg, and she answered, “Yes, sir,” to the question, “Tell the jury whether the touching of the leg and the hugging of your person occurred in Huntington county, Ind.” She testified that it was about 6 o'clock on the evening of June 3, 1923, when the boys drove up and asked the girls to ride, and that they drove out into the country and waited until after dark, when he and she again climbed into the back part of the truck, and that appellant had intercourse with her in there just after dark that same evening, as he is alleged to have intended to do when he touched her earlier in the evening in Huntington county.

Through inadvertence, appellant's request for an oral argument was overlooked, and a decision affirming the judgment was announced without hearing such an argument. Asking that the decision be set aside and argument heard, appellant propounds, as the questions to be discussed, (a) whether or not there was any evidence that appellant touched the girl unlawfully in Huntington county; (b) whether or not the evidence of what he did after they had crossed into Wabash county can be considered on the question of his intent when he put his arm around her and put his hand on her leg in Huntington county; and (c)whether or not the fact that later the same evening he actually had sexual intercourse...