Hanes v. The State

• Citation: 57 N.E. 704,155 Ind. 112
• Decision Date: 20 June 1900
• Docket Number: 19,299
• Parties: Hanes v. The State
• Court: Supreme Court of Indiana

57 N.E. 704

155 Ind. 112

Hanes v. The State

No. 19,299

Supreme Court of Indiana

June 20, 1900

From the Warren Circuit Court.

Affirmed.

James McCabe, for appellant.

W. L Taylor, Attorney-General, C. V. McAdams, Merrill Moores and C. C. Hadley, for State.

OPINION

Hadley, J.

The appellant was convicted of an assault and battery upon the prosecutrix, who was a girl under the age of consent, with intent to commit rape. The questions presented by the assignment of errors, and not waived, arise under the overruling of appellant's motion for a new trial.

It is first insisted that the conviction is not sustained by sufficient evidence, in this, that the evidence does not rise to that degree of certainty, with respect to his felonious intent, which excludes every reasonable hypothesis consistent with his innocence. There is no dispute about the law as it is clearly stated in Cavender v. State, 126 Ind. 47, 25 N.E. 875; but the contention is that the evidence is not so conclusive in character as to preclude a reasonable inference of innocent intent.

The evidence sufficiently proves that the prosecutrix was thirteen years of age, and lived with her grandparents, who were old and feeble. The defendant was fifty-nine years of age, of bad moral character, separated from his wife, and on two or three occasions followed after the girl as she went a short distance into the country on errands, and upon one of these occasions asked her, while she was in the presence of another girl, when he could see her. The defendant was seen at dusk in an alley near a barn on the premises where the prosecutrix lived. On July 13, 1899, he was by a neighbor seen to enter this barn and the girl soon afterward was also seen to go from the house into the barn. About ten minutes later the neighbor, who had observed them, went down the alley to the barn, and looked through a crack into the interior, but saw or heard no one. Passing on he soon returned to his house whence he had made his first observations, and in fifteen or twenty minutes the girl reappeared at her house and the defendant left the barn. On July 17th, two witnesses who reside in the neighborhood of the girl, one of whom was her relative observed the defendant leave his place in the street and go after the girl as if following her. These two men left their office and going to their homes saw the defendant first and the girl shortly afterward go into the barn. The relative at once proceeded to the barn, vainly tried to pull open a door saw the girl jump from the ladder leading into the mow, hurried to another door on the other side of the building, and there found the girl had escaped and was fleeing to the house and refused to stop upon his call. The witness proceeded into the stable and found the defendant in the mow and put him under arrest.

With respect to the meeting in the stable on July 13th, the girl testified in substance as follows: "I went in at the east door of the barn to get cobs, set my basket on the ground, and while I was getting cobs out of the manger with both hands, Hanes from behind grabbed me by the left arm and said, 'Just wait a minute. I won't hurt you.' He then felt my breasts and my limbs and tried to raise my clothes and tried to throw me down. I stood with my back to him and held onto the manger. He tried to throw me down but didn't try with very much force. He took hold of both my arms with both his hands but I held onto the manger. He then let loose of one hand and took hold of my clothes at the side and raised them a little above my knees, and I just kind of pulled them down. He kind of hurt me when he grabbed my arm. He kind of put his face to mine and said four or five times he would not hurt me and told me I was the sweetest little girl in town and to wait a minute. I don't remember anything else he said and I jerked away from him and went into the house. There was nobody at the house but my grandpa and I did not tell him what had happened and I didn't tell my grandmother until after Hanes was arrested", which was on July 17th.

With respect to his presence in the barn on the 13th and 17th of July, the defendant, in substance, testified that he was there on both occasions to meet other women; on the 13th to meet the mother of the girl, and on the 17th another woman living two squares away, and without any appointment with either woman. And it appeared from the evidence that the mother of the girl had not been in the town since the previous March. That on both occasions while in the barn, as defendant stated, he saw the girl leave the house and to avoid her seeing him he each time went up into the mow, and did not see nor speak to her in the barn on either occasion.

Intent is a mental function, and, where not consummated, it is impossible to know with absolute certainty what was operating in the actor's mind, and in such cases it must be arrived at by courts and juries from a consideration of the conduct and the natural and usual sequence to which such conduct logically and reasonably points. Appellant's counsel does not inform us of any intent of his client that appears consistent with his innocence. It is, however, contended that the fact that he did not accomplish sexual intercourse, or employ greater force, should be accepted as sufficient evidence that he did not intend it. This contention by no means reaches the question. We think it is apparent that he did not intend to subject the prosecuting witness to his will by force, but if his purpose was to gain her voluntary submission by a course of lascivious conduct towards her, he was none the less guilty. The evidence is that she pulled away from him and went to the house. That he did not employ his power to hold her and coerce her as he might is not inconsistent with a design to win her by lustful blandishments, and that he failed in the latter course by no means disproves his criminal intent, or of itself raises a reasonable doubt. The girl had no power to consent, and her voluntary submission to him would have been as much his crime as her forcible subjection.

We have no positive evidence of the appellant's intent, and, as in most criminal cases, it must be inferred from the the facts proved. The evidence shows that the appellant is a confessed libertine, living apart from his wife; that he had followed the prosecutrix to the country on two or three occasions, and upon one of them, in the presence of another, had requested an appointment with her. According to his own statement he was so swayed by his libidinous passion as to be twice led to the barn, without any appointment, but in the mere hope of an opportunity for gratification. While thus dominated by lecherous desire he met the girl he had followed, and with whom he had been seeking interviews. He at once laid hands upon her in the seclusion of the barn, and commenced a prosecution of the arts of the seducer. This he continued until she tore away and left him. His character, his conduct, his evident frame of mind, the place, the nature of his words and the...