Gordon v. State

• Citation: 98 N.E. 627,177 Ind. 689
• Decision Date: 28 May 1912
• Docket Number: 22,125
• Parties: Gordon v. State of Indiana
• Court: Supreme Court of Indiana

98 N.E. 627

177 Ind. 689

Gordon v. State of Indiana

No. 22,125

Supreme Court of Indiana

May 28, 1912

From Knox Circuit Court; Orlando H. Cobb, Judge.

Prosecution by the State of Indiana against Harry Gordon. From a judgment of conviction, the defendant appeals.

Affirmed.

James S. Pritchett, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION

Spencer, J.

The appellant, Harry Gordon, was tried by a jury in the court below on the following affidavit: "Harry Adams, who being duly sworn according to law, upon his oath says, That on or about the 1st day of June, in the year 1911, at the County of Knox and State of Indiana, Harry Gordon, did then and there unlawfully and feloniously make an assault in and upon one Louise Bouchie, then and there being a female child under the age of sixteen years, to wit, of the age of fifteen years, and did then and there feloniously and unlawfully, ravish and carnally know her, the said Louise Bouchie, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Indiana."

The jury returned their verdict as follows: "We, the jury find the defendant, Harry Gordon, guilty of assault and battery with intent to commit a rape upon Louise Bouchie."

Appellant filed a motion in arrest of judgment, which motion was overruled.

The court rendered judgment on the verdict, committing appellant to imprisonment in the Indiana Reformatory for a period of from two to fourteen years.

Appellant in his brief says: "Only one question will be argued in this brief, and that question arises under each of the four assignments of error. It may be briefly stated thus 'Will an affidavit charging rape on a female child under the age of sixteen years, which does not in terms contain a charge of assault and battery, support a verdict and judgment of guilty of assault and battery with intent to commit rape?'"

The answer to appellant's question will, therefore, be decisive of this appeal. It has been repeatedly held that every charge of rape necessarily includes a charge of an assault and battery. Mills v. State (1875), 52 Ind. 187; Murphy v. State (1889), 120 Ind. 115, 22 N.E. 106; Richie v. State (1877), 58 Ind. 355; Ewbank, Crim. Law, § 771.

Counsel for appellant insist that the above rule of law does not apply here, for in this case the female was under the age of sixteen years, and, while she could not consent to the rape she might consent to the assault and battery; and, therefore, in order to support the verdict in this case, the affidavit...