Heath v. The State
| Citation | 90 N.E. 310,173 Ind. 296 |
| Decision Date | 06 January 1910 |
| Docket Number | 21,461 |
| Parties | Heath v. The State of Indiana |
| Court | Supreme Court of Indiana |
From Dubois Circuit Court; John L. Bretz, Judge.
Prosecution by the State of Indiana against Lee Heath. From a judgment of conviction, defendant appeals.
Affirmed.
R. W Armstrong and R. M. Milburn, for appellant.
James Bingham, Attorney-General, Alexander G. Cavins, Edward M White and William H. Thompson, for the State.
Appellant was convicted of the crime of rape upon a child under fourteen years of age, and has assigned as errors the overruling of (1) his motion to quash the affidavit; (2) his request for leave to withdraw his plea of not guilty; for the purpose of filing an answer in abatement, (3) his motion for a new trial, and (4) his motion in arrest of judgment.
This prosecution was founded upon section 361 of the act of 1905 concerning public offenses (Acts 1905, p. 62, § 2004 Burns 1905). This section was amended by the act of February 26, 1907 (Acts 1907, p. 85, § 2250 Burns 1908); and in support of the motion to quash, it is contended that the amendatory act repealed the former statute by implication, and contained no saving clause, hence this prosecution cannot be maintained. The amending act of 1907 is in the exact language of the original statute, except that the age of consent is made sixteen years instead of fourteen years, and in the proviso life imprisonment is imposed in case the child is under twelve years of age instead of ten, as provided in the former act. These changes indicate no intent on the part of the legislature to strike down the former law and release persons guilty of offenses thereunder from liability, but on the other hand, clearly manifest a purpose to continue and enlarge the provisions of the existing statute. Any violation of the provisions of the former act would in like manner constitute an offense under the amended statute. In other words, all the provisions of the statute of 1905, supra, with the enlargements before mentioned, are incorporated in the act of 1907, supra, so that the rule applies that where a statute is repealed and its provisions are at the same time reenacted by the repealing act, the effect is that the earlier statute is not in fact repealed, but its provisions are merged and continued in operation, and all liabilities incurred thereunder may be enforced. Cheezem v. State (1850), 2 Ind. *149; Alexander v. State (1857), 9 Ind. 337; Cordell v. State (1864), 22 Ind. 1; Sage v. State (1891), 127 Ind. 15, 26 N.E. 667; Commonwealth v. Anselvich (1904), 186 Mass. 376, 71 N.E. 790, 104 Am. St. 390; State v. Williams (1895), 117 N.C. 753, 23 S.E. 250; Glentz v. State (1875), 38 Wis. 549; Stenberg v. State, ex rel. (1897), 50 Neb. 127, 69 N.W. 849; State v. Kibling (1888), 63 Vt. 636, 22 A. 613.
If the legislative purpose to preserve the substance of the former statute were not plain, as shown, but were doubtful, the general statute of March 13, 1877 (Acts 1877 [s. s.] p. 73, § 248 Burns 1908, § 248 R. S. 1881), declarative of the continuing policy of the State, that the repeal of any statute shall not have the effect to release or extinguish any penalty or liability incurred under such statute unless the repealing act expressly so provide, would be sufficient to uphold this prosecution. State v. Hardman (1896), 16 Ind.App. 357, 45 N.E. 345; Commonwealth v. Duff (1888), 87 Ky. 586, 9 S.W. 816; People v. McNulty (1892), 93 Cal. 427, 26 P. 597, 29 P. 61; Jordan v. State (1869), 38 Ga. 585. It follows that the motions to quash and in arrest of judgment were rightly overruled.
Appellant pleaded not guilty to the charge, and the trial proceeded until all the evidence in behalf of the State had been introduced, whereupon leave was asked to withdraw the general plea for the purpose of filing an answer in abatement. This request was denied, and this ruling was made a ground for a new trial. Assuming that the court upon a proper showing had authority to grant appellant's request, still in this case no excuse whatever is made to appear why the proposed plea was not filed at the proper time. Pleas in abatement are not favored, and except where statutes prescribe a different rule of practice they must precede pleas in bar. Pointer v. State (1883), 89 Ind. 255; Cooper v. State (1889), 120 Ind. 377, 22 N.E. 320. It would manifestly be an intolerable practice to permit a defendant to plead to the merits and remain silent until all the evidence against him had been heard, and then, upon his mere request, have the trial arrested, the submission set aside and his plea of not guilty withdrawn, in order to file a plea in abatement. If a trial court may under any circumstances exercise the extraordinary power invoked in this connection, a question which we need not and do not decide, it must at most be a discretionary power whose exercise can only be justified upon a clear and strong showing that injustice would otherwise result. No showing whatever was made in this case, and certainly no abuse of judicial discretion, if any rested with the court, appears.
Appellant's counsel asked the prosecuting witness, on cross-examination, whether at a time stated she had told her father of her illicit relations with other young men, and whether she had not filed affidavits against other young men named. It is argued that the evidence sought by these questions tended to prove the unchastity of the prosecutrix, and to exhibit her depraved and immoral nature. The charge in this case did not involve the prosecuting witness's general chastity or unchastity, or any question as to whether the sexual acts with appellant were with or without her consent. If appellant had sexual intercourse with the witness at a time when she was under fourteen years of age the offense was complete, since under the law she was incapable of consenting to such an act, and it was immaterial whether her life had been previously chaste or unchaste.
The court refused to allow the father of the prosecuting witness to state whether he had filed an affidavit against a certain young man and caused his arrest on a charge similar to that preferred against appellant, and also refused to admit in evidence affidavits made by the prosecuting witness charging certain young men with like offenses. These matters were all manifestly improper and irrelevant, and the court very properly excluded them. The only pertinent inquiry was whether appellant committed the offense charged, and not whether other men were or were not guilty of like offenses upon the same person.
It is alleged in the motion for a new trial that the prosecuting attorney in the closing argument misquoted the language of appellant's counsel, and wrongfully stated to the jury "that he would not do as counsel for defendant had done and would not tell the jury that if they did not find the defendant not guilty that he would send them to the asylum or call them grasshoppers." The record, outside the motion for a new trial, does not show that such an incident as that relied on occurred. Matters of this character cannot be shown by mere recitals in the motion for a new trial, but must be brought into the record by a bill of exceptions. Siberry v. State (1896), 149 Ind. 684, 39 N.E. 936; Reed v. State (1897), 147 Ind. 41, 46 N.E. 135; Masterson v. State (1896), 144 Ind. 240, 245, 43 N.E. 138; Robb v. State (18...
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