Hawkins v. The State

• Decision Date: 15 February 1894
• Docket Number: 17,033
• Citation: 36 N.E. 419,136 Ind. 630
• Parties: Hawkins v. The State
• Court: Indiana Supreme Court

36 N.E. 419

136 Ind. 630

Hawkins v. The State

No. 17,033

Supreme Court of Indiana

February 15, 1894

From the Perry Circuit Court.

The judgment is affirmed.

J. H Weathers and C. A. Weathers, for appellant.

A. G Smith, Attorney-General, and F. T. Edenharter, for State.

OPINION

Howard, C. J.

This was a prosecution by affidavit and information, for the crime of rape.

The cause was submitted to a jury, who found a verdict against the appellant, assessing his punishment at imprisonment in the State prison for five years. There was judgment upon this verdict.

The errors assigned on this appeal are:

1. The overruling of the motion to quash the "indictment."

2. The overruling of the motion for a new trial.

3. The overruling of the motion in arrest of judgment.

As to the first alleged error, a reference to the record shows that there was no indictment, but an information. It also appears that the motion to quash was directed against the affidavit and not against the information.

But without considering whether there was here any proper assignment of error, it is evident that there was in fact no such error as that attempted to be assigned. The caption of the affidavit shows the venue to be in Perry county, in the State of Indiana; while in the body of the affidavit it is charged that the offense was committed "at said county."

This is a sufficient statement of the place where the offense was committed. Evarts v. State, 48 Ind. 422; Long v. State, 56 Ind. 133; Anderson v. State, 104 Ind. 467, 4 N.E. 63.

The affidavit further, as required by the statute, section 1679, R. S. 1881, sets forth "the offense and the person charged in plain and concise language." This, together with the names of the witnesses, completes the requirement of the statute, and was sufficient upon which to base the information.

While it is true, as provided in section 1731, R. S. 1881, that the indictment or information must contain the title of the action and the name of the court to which the indictment or information is presented; yet, in an affidavit, this is not necessary, and, under some circumstances, it would be improper. The affidavit may be taken before a notary public or other officer who may not try the case, and it is usually made before there is a suit pending, so that there is no title to give and no court to name. It is only necessary that it should appear that the affidavit was made for the purposes of the suit in which it is afterwards filed.

As to the objection made to the jurat of the officer, it is enough to say that "J. P." was a sufficient indication of his office as justice of the peace. 1 Am. and Eng. Encyc. of Law, 15 and 310.

The arguments of counsel against the affidavit are such as might have force as against a defective indictment or information; but there is no question that the information in this case is good. We think the affidavit also conforms to the statute.

Under the second assignment of error, it is objected that the court, in charging the jury, stated that the prosecuting witness was thirteen years old. The uncontradicted testimony, both of the prosecuting witness and of her mother, was that her age was thirteen. It was not, therefore, error in the court to assume this as true. Koerner v. State, 98 Ind. 7, and authorities there cited.

The evidence shows that the defendant was fifty-two years of age, and that he was the family physician of the prosecuting witness. On the morning of the day in question, the mother of the prosecuting witness came to the doctor's office to wash and clean up the rooms, but being unwell, she returned home and sent her three children to do the work. These children consisted of the prosecuting witness and her brother and a younger sister. When they arrived at the office, they found the doctor in bed in one of the rooms. He sent the brother out after a bottle of whisky, and the younger sister after soap. The testimony of the prosecuting witness is that he then got up and locked the doors and took her, at first, upon his lap, and then to his bed, where he accomplished his purpose.

She testifies: "I told him to quit. He said he would not hurt me." And, on cross-examination, she says: "I did not know what he was going to do with me."

Her brother testifies that when he returned with the whisky he found the door locked. He then went to the back door, and found that also locked. Afterwards the doctor let him in at the back door, and he saw his sister standing near the stove and crying. The doctor then went out and she told her brother what the doctor had done. On the return home of the children, the mother testifies as to finding evidence of the commission of the offense.

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