Kell v. State

• Decision Date: 11 March 1924
• Docket Number: 24,365
• Citation: 142 N.E. 865,194 Ind. 374
• Parties: Kell v. State of Indiana
• Court: Indiana Supreme Court

142 N.E. 865

194 Ind. 374

Kell v. State of Indiana

No. 24,365

Supreme Court of Indiana

March 11, 1924

From Gibson Circuit Court; Robert C. Baltzell, Judge.

Robert M. Kell was convicted of statutory rape, and he appeals.

Reversed.

Thomas Duncan and Prentiss Duncan, for appellant.

U. S Lesh, Attorney-General, Edward M. White, Assistant Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.

OPINION

Willoughby, J.

The appellant, Robert M. Kell, was convicted by a jury of the crime of rape upon a female child under the age of sixteen years. The appellant seeks a reversal of the judgment and assigns as error the overruling of his motion for a new trial. Under such assignment of error he alleges that the verdict was not sustained by sufficient evidence; that the court erred in admitting certain evidence on cross-examination of the appellant; that the court erred in giving and refusing certain instructions.

The appellant says that the court erred in refusing to give each of instructions numbered 1 and 2 tendered by the defendant. These are general instructions relative to reasonable doubt and the burden of proof and were proper to be given under any state of the evidence in the trial of a criminal case, but in this case other instructions were given by the court in its series of instructions which embraced each principle of law set forth in these instructions or either of them, therefore it was not error to refuse to give them.

Instruction No. 2a and instruction No. 7, tendered by the defendant are not correct statements of the law as applied to the evidence to which they were directed. The court properly refused to give each of them.

Instruction No. 4, tendered by appellant was fully covered by instruction No. 13, given by the court of its own motion. Where propositions of law have been fully and fairly stated once, the court is not required to give additional instructions tendered, covering the same points and propositions. Bohan v. State (1924), ante 227, 141 N.E. 323; Barnett v. State (1885), 100 Ind. 171.

On the trial certain questions were asked by appellant on cross-examination by counsel for the state touching his relations with women other than Evelyn Armstrong. These questions were proper. The defendant in becoming a witness subjected himself to the same treatment as any other witness. It has been held that any fact tending to impair the credibility of a witness by showing his interest, bias, ignorance, motives, or that he is depraved in character may be shown in cross-examination, but the extent to which the cross-examination may be carried is within the sound discretion of the court. Pierson v. State (1919), 188 Ind. 239, 123 N.E. 118, and cases there cited.

This evidence was limited by the court by instruction No. 13, given by the court of its own motion as follows: "Certain questions were propounded on cross-examination by counsel for the state, to the defendant, Robert Kell, touching his relations with women other than Evelyn Armstrong. These inquiries were permitted by the court concerning alleged specific acts and conduct extraneous to the issues involved in this case. They were calculated to degrade the defendant and impair his credibility, and were admissible in evidence for the purpose only of bearing upon the weight and credit to be given to the testimony of said defendant." This instruction properly limited such evidence to the purpose for which it was admitted.

Appellant says that instruction No. 10, given by the court of its own motion is erroneous, "in that it directs the jury to consider all the evidence on the subject of the credibility of witnesses." The mere reading of instruction No. 10 shows that the objection made by appellant to it is not tenable. The instruction is as follows: "You are the sole judges of the facts and credibility of witnesses including the defendant, who has testified as a witness in this case. It is your duty to reconcile all the statements of witnesses on the theory that the defendant is innocent, if you can. If you cannot reconcile the statements of witnesses on account of contradictions, then you have a right to believe the witness, or witnesses, you deem most worthy of credit and disbelieve the witness or witnesses whom you believe least worthy of credit. In determining whom you will believe you may consider the nature of the evidence given by them, their interest, bias, or prejudice, if any, disclosed; their opportunity for knowing the facts about which they testify; their manner and deportment while on the witness stand; how far they are corroborated or contradicted by other testimony, and in weighing the testimony and determining the credibility of the witnesses it is proper for you to take into consideration all the surrounding circumstances of the witnesses as brought out in the evidence, their interest, if any, in the...