Gunderman v. State

• Decision Date: 06 July 1934
• Docket Number: 26093
• Citation: 191 N.E. 338,207 Ind. 515
• Parties: GUNDERMAN v. STATE
• Court: Indiana Supreme Court

191 N.E. 338

207 Ind. 515

GUNDERMAN v. STATE

No. 26093

Supreme Court of Indiana

July 6, 1934

[Rehearing denied February 19, 1935.]

1. INDICTMENT AND AFFIDAVIT---Affidavit---Approval of Prosecuting Attorney---Affidavits Originating in Inferior Courts.---One charged with a felony by affidavit originally filed with a justice of the peace, or officer of like jurisdiction, cannot be tried in the criminal or circuit court upon the original affidavit unless the approval of the prosecuting attorney is endorsed thereon. p. 521.

2. CRIMINAL LAW---Jurisdiction---Transfer of Causes.---When the transcript of proceedings in city court, together with the affidavit charging a felony and endorsed by the prosecuting attorney, and the recognizance bond were filed with the clerk of the superior court, the latter court acquired jurisdiction to try the cause upon the original affidavit under 9--723 9--908, and 9--909, Burns 1933. p. 522.

3. STATUTES---Title-Scope of Subject---Criminal Procedure.---Title of act providing for collection of costs and fees for justice of the peace and other officers of like jurisdiction for preliminary examinations in felonies and certain misdemeanors (Acts 1921, ch. 252, p 742), held not to include provisions in body of act prescribing procedure for transfer of such causes to the criminal or circuit court. p. 523.

4. INDICTMENT AND AFFIDAVIT---Affidavit---Time of Filing---Statute.---In statute providing for prosecutions by affidavit, the words "filed in term time" and "filed in vacation," held to refer only to the time of filing and not to the time the affidavit is "made" or approved by prosecuting attorney. (9--908, Burns 1933.) p. 523.

5. RAPE---Trial---Verdict---Misnaming of Offense.---In prosecution for rape, verdict finding defendant guilty of "assault and battery with intent to commit rape" was construed as a finding of guilty of "attempted rape," where court had properly defined the offense of "attempted rape" in its instructions, but referred to it as "assault and battery with intent to commit rape." p. 526.

6. CRIMINAL LAW---Trial---Instructions---Jury Judges of Law and Facts.---Instruction that jury "weigh the instructions given as you weigh the facts," though disapproved, held not error where the jury was further told to "disregard neither without proper reasons." p. 528.

7. RAPE---Nature of Offense---Degrees Included---First and Second Degree.---The offenses of first and second degree rape as defined in the statute must be treated as separate offenses and not as different degrees of the same offense. p 529.

8. CRIMINAL LAW---Appeal---Review---Instructions---Harmless Error.---Instruction in rape case that second degree rape was included in charge of first degree rape, held harmless error where defendant was found guilty of attempted rape under instruction properly defining that offense. p. 530.

9. CRIMINAL LAW---Appeal---Review---Instructions---Requested Instructions.---Refusal to give requested instructions was not error where others given by the court fully and correctly covered the subject matter of those refused. p. 530.

10. RAPE---Trial---Instructions---Resistance by Prosecuting Witness.---An instruction in a rape case that the state must show that the prosecuting witness "resisted with all the means she had within her power," and also that "there must be resistance such as is reasonable under the circumstances," held properly refused. p. 530.

11. RAPE---Nature of Offense---Degrees Included---Assault and Battery.---Assault and battery is included in a charge of first degree rape. p. 530.

12. RAPE---Trial---Instructions---As to Verdict.---Instruction in a rape case that jury might convict for assault and battery "even though the proof show that the alleged rape was actually committed," held properly refused. p. 530.

Burl Gunderman was convicted of attempted rape, and he appealed. Affirmed.

Hawley O. Burke, of Elkhart, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Sp. Asst. Atty Gen., for the State.

OPINION

TREANOR, Judge.

Appellant was convicted of attempted rape upon an affidavit charging rape as defined in section 10-4201, Burns' Ind. St. Ann. 1933, section 2429, Burns' Ann. Ind. St. Supp. 1929, Acts 1927, c. 201, § 2, p. 576. He assigns as error the court's action in overruling (1) motion to quash, (2) motion in arrest of judgment, and (3) motion for new trial. In support of the motion to quash, appellant contends that the Elkhart superior court was without jurisdiction to hear and determine the cause, for the reason that the affidavit was not properly filed in the superior court. As a basis for this contention appellant makes the following statement: 'In this case the affidavit upon which appellant was tried and convicted was made on the 21st day of December, 1930, and filed in the City Court of the City of Elkhart before the Honorable Arthur H. Conley, Judge thereof as an examining magistrate and constituted the charge upon which appellant was, on the 9th day of January, 1931, recognized to appear at the next or February 1931 Term of the Elkhart Superior Court to answer such charge as might be there filed against him. This same affidavit was filed with the Clerk of the Elkhart Superior Court together with the transcript and recognizance bond by the said Judge of said City Court on the 4th day of March, 1931. The same affidavit, without being resworn to or endorsed or signed by the prosecuting attorney, was refiled in the Elkhart Superior Court on the 2nd day of April, 1931, under pretext of authority of Section 2103 R. S. 1926.' Appellant's brief, pp. 35, 36.

Appellant's contention that the superior court was without jurisdiction depends ultimately upon the correctness of two assumptions:

(1) Under the record facts, as set out above, jurisdiction could be acquired only by virtue of the provisions of chapter 51 of the Acts of 1911 as amended by chapter 252 of the Acts of 1921. Section 9-712, Burns', etc., 1933, section 2103, Burns', etc., 1926. ^[1]

(2) Chapter 252 of the Acts of 1921 is unconstitutional in that it contravenes article 4, § 19, of the Indiana Constitution.

We think, however, that the Elkhart superior court acquired jurisdiction to hear and determine the cause by virtue of other provisions of our statutes and without reference to the act of 1921, supra. We call attention to the following:

(A) 'Any justice of the peace or city judge, on complaint made on oath before him, charging any person with the commission of any felony or misdemeanor, shall issue his warrant for the arrest of such person, and cause him to be brought forthwith before him for examination or trial. * * *' Section 9-701, Burns', etc., 1933, section 2092, Burns', etc., 1926, Acts 1905, c. 169, § 62, p. 584.

(B) 'When the offense charged is a felony, or a misdemeanor in which the lowest fine provided by law is larger than the justice shall have jurisdiction to assess, and the justice, upon the hearing, is of the opinion that the accused should be held to answer such charge, he shall be recognized to appear at the next term of the criminal court of such county, or if there be no criminal court, then to the circuit court of such county.' Section 9-711, Burns', etc., 1933, section 2102, Burns', etc., 1926, Acts 1905, c. 169, § 72, p. 584.

(C) 'Such recognizance, together with a transcript of the proceedings and all papers in the case, shall be forthwith filed with the clerk of the proper court, who shall docket such cause for trial and record such recognizance forthwith, and enter the same on the judgment docket; and from the date of such entry it shall operate as a lien upon all lands in the county of the parties thereto, and any judgment afterward had upon it shall relate back to the date of such entry.' Section 2113, Burns', etc., Supp. 1929, Acts 1927, c. 132, § 3, p. 411.

It follows from the foregoing that a person can be arrested and brought before a justice of the peace or a city judge upon an affidavit ('complaint made on oath') charging a felony. It is then the duty of the justice or city judge to recognize the accused to appear at the next term of the criminal or circuit court of the county. Section 2113, Burns', etc., Supp. 1929, (C), supra, authorizes the filing of the recognizance, transcript of proceedings, and all papers in the case with the clerk of the criminal or circuit court, who is directed to 'docket such cause for trial.' This would seem to confer jurisdiction upon the criminal or circuit court to hear and try the cause upon 'the complaint made on oath' before the justice of the peace or city judge, regardless of whether the 'complaint on oath' was approved by the prosecuting attorney. But we think the following statutory provisions must be considered:

(D) 'All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit, filed in term-time, in all cases except when the grand jury is in session or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.' Section 2150, Burns', etc., 1926, Acts 1905, c. 169, § 118.

This section was amended in 1927 to read as follows:

(E) 'All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit. And such affidavit may be filed in vacation time as in term time, but only with the approval of the judge of such court, who may arraign and admit to bail as in term time, or may receive a plea of guilty and proceed forthwith as in term time.' Section 9-908, Burns', etc., 1933, section...