Hollister v. State

• Decision Date: 05 March 1901
• Citation: 59 N.E. 847,156 Ind. 255
• Parties: HOLLISTER v. STATE.
• Court: Indiana Supreme Court

156 Ind. 255

59 N.E. 847

HOLLISTER

v.STATE.

Supreme Court of Indiana.

March 5, 1901.

Appeal from circuit court, Delaware county; Joseph G. Leffler, Judge.

John S. Hollister was convicted of an assault with intent to commit rape, and he appeals. Reversed.

Gregory, Silverburg & Lotz, for appellant. Edward M. White, Pros. Atty., W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

HADLEY, J.

Appellant was convicted of an assault with intent to commit rape. His motion for a new trial was overruled. The evidence is in the record, and its sufficiency to sustain the verdict and judgment is the principal question discussed. The undisputed facts are that the prosecuting witness is a married woman, living with her husband on a farm in Delaware county. On May 21, 1900, the appellant, 49 years of age, was engaged in traveling the country in the business of selling tombstones and soliciting orders for medicines for rheumatism and female diseases. He traveled in a buggy, and was a stranger in the community. On the day named he called at the home of the prosecuting witness about 1 o'clock p. m. She was alone. Her husband at the time was 30 rods distant, on the highway, in conversation with a neighbor, in view of the open porch in front of the house door. Neighbors lived near by. Appellant hitched his horse to the fence, and stepped onto the open porch in front of the door. The prosecuting witness continues the story as follows: “He knocked at the door, and upon my going to the screen he inquired how far it was to Richard Stewart's. I pointed him to where Mr. Stewart lived. He then took hold of the door, and said, ‘My name is Dr. Johnson, and maybe you will have some of my medicine.’ I replied, ‘No, sir; not today.’ He then stepped inside, and said to me, ‘You look hearty.’ I replied, ‘I am hearty.’ He kept approaching me, and I kept stepping backwards until I had reached almost the middle of the room, when I thought I would go outdoors. I made for the door that he came in at, and he said I ought to have some of his remedies, and I said, ‘No, sir.’ He then wanted to know how long it had been since I had had any family. I told him it had been about ten years. He then wanted to know why I didn't have more family. I told him that was my business, and none of his. He then wanted to know what I did. I was out on the porch by that time, and he was following me up, and I replied that I did not do anything, and told him to go. He then said, ‘Have one of mine, won't you?’ and I said, ‘Drot you get.’ He acted independently, and I saw my husband in the road, and I said, ‘I shall call my husband,’ and as I started to call him the defendant started for his rig, and went about as fast as he could. I hallooed to my husband to stop him, and my husband hallooed at him, but he never stopped or looked towards him. Before I called my husband, he sauntered around on the porch as though he didn't have to go. He did not touch me at any time, nor try to prevent me from leaving the room.” Four other married women residing in the vicinity testified to similar conduct of the appellant in asking offensive questions, under pretense of selling a female remedy at their respective homes, on the same day, at times two before and two after the acts complained of. Appellant testified in his own behalf, admitting the substance of the testimony of the prosecuting witness, but disclaimed any assault or criminal intent. This was all the important evidence given.

Appellant insists that under the evidence he is not guilty of the offense for which he has been convicted. The prosecution is based upon the following statutes: “Whoever perpetrates an assault * * * upon any human being, with intent to commit a felony, shall upon conviction,” etc. Section 1982, Burns' Rev. St. 1894 (section 1909, Horner's Rev. St. 1897). “Whoever having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault.” Section 1983, Burns' Rev. St. 1894 (section 1910, Horner's Rev. St. 1897). “Whoever unlawfully has carnal knowledge of a woman forcibly against her will, is guilty of rape.” Section 1990, Burns' Rev. St. 1894 (section 1917, Horner's Rev. St. 1897). To sustain the conviction it must appear beyond reasonable doubt that appellant, having the present ability to do so, unlawfully attempted to...