Flowers v. State

• Decision Date: 30 April 1943
• Docket Number: 27815.
• Citation: 48 N.E.2d 56,221 Ind. 448
• Parties: FLOWERS v. STATE.
• Court: Indiana Supreme Court

48 N.E.2d 56

221 Ind. 448

FLOWERS v. STATE.

No. 27815.

Supreme Court of Indiana

April 30, 1943

Appeal from St. Joseph Circuit Court; Dan Pyle Judge.

Allen & Allen, of South Bend, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, Deputy Atty Gen., for appellee.

SHAKE Judge.

The appellant was found guilty by the court, without a jury, on the first of three (3) counts of an affidavit. The charges were (1) incest upon the appellant's daughter; (2) the rape of said female, and (3) incest, in which the female was alleged to have been the stepdaughter of the appellant. There was an acquittal on the second and third counts. The second count charged that the female was thirteen years of age when the alleged offense was committed, and the undisputed evidence disclosed that she was the appellant's daughter and was fourteen years old at the time of the trial. In view of the relationship of the parties the acquittal on the third count is, therefore, readily understood.

The appellant urges that there is a fatal inconsistency in the finding of guilty on the charge of incest and the acquittal on the charge of rape. It is urged that the judgment cannot stand because manifestly the appellant was guilty of both offenses or neither. This conclusion is based upon the fact that sexual intercourse is an essential element of incest and that such a relationship with a female under the age of sixteen years constitutes rape. §§ 10-4206, 10-4201, Burns' 1942 Replacement, § 2577, Baldwin's 1934, § 2421-1, Baldwin's Supp.1941.

Our attention is directed to the case of People v Andursky, 1925, 75 Cal.App. 16, 241 P. 591. That case lends support to the appellant's view and others might be cited to like effect, but we do not consider this line of decisions to be in harmoney with the weight of authority or the precedents of this jurisdiction.

The better rule appears to be that declared by Mr. Justice Holmes in Dunn v. United States, 1932, 284 U.S. 390, 52 S.Ct. 189, 190, 76 L.Ed. 356, 80 A.L.R. 161, where it was declared:

'Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. * * * Where the offenses are separately charged in the counts of a single indictment the same rule must hold. * * *

'That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.'

The Dunn case cites with approval Steckler v. United States, 2 Cir., 7 F.2d 59, 60, where it was said: 'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction, the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'

It may be noted that the appellant's conviction of incest carried a maximum penalty of imprisonment for not less than two or more than twenty-one years (§ 10-4206, Burns' 1942 Replacement), while the statute defining the crime of rape, in force when the alleged offense was committed, imposed a minimum penalty of imprisonment for not less than five nor more than twenty-one years. § 10-4201, Burns' 1933. This may explain, though it would not justify, the appellant's acquittal of rape.

The case of Sichick v. State, 1929, 89 Ind.App. 132, 166 N.E. 14, 15, decided when the Appellate Court had jurisdiction of certain appeals arising out of criminal cases, is precisely in point. The concluding words of that opinion are as follows: 'A review of the evidence discloses the appellant guilty of maintaining a nuisance also the evidence would have sustained a...