Kelley v. State

• Decision Date: 14 April 1948
• Docket Number: 28357.
• Parties: KELLEY v. STATE.
• Court: Indiana Supreme Court

78 N.E.2d 547

226 Ind. 148

KELLEY v. STATE.

No. 28357.

Supreme Court of Indiana

April 14, 1948

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

J Chester Allen, of Allen & Allen, all of South Bend, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, Deputy Atty. Gen and Merl M. Wall, Deputy Atty. Gen., for appellee.

O'MALLEY Judge.

The appellant was charged with the rape of a 22 year old girl in January, 1947. After his arrest and appearance he filed a motion for a change of venue from the judge. By agreement the cause was sent to the St. Joseph Circuit Court.

Considering the evidence in its most favorable light to the State, the jury could have found that the appellant and another man together with the complaining witness, left the home of a friend and the three people, all sitting in the front seat of an automobile, drove away from the friend's home with the expressed intention of taking the young woman to the place where she lived. Instead of taking her home the appellant, who was driving the car, proceeded to a secluded section of the city or its suburbs and then the men changed seats and the appellant moved to the center of the front seat. He then ordered the girl to get into the back seat. She refused and asked that she be taken to her home as requested before this phase of the ride had started. He refused to take her home and began placing his hands on parts of her body, and after some minutes he took hold of her at the shoulders and knees and threw her over into the part of the car which was in front of the rear seat. He then climbed over the back of the front seat of the car and having placed her on the rear seat in a reclining position, commenced to fondle her in an intimate way. During all of this time she was remonstrating and entreating him not to do those things. While she was entreating him and screaming and crying he proceeded to have intercourse with her. He was a large man and she was a small 95 pound girl and was unable to stop him from having his way with her. After he had completed the act, he went to the front seat and his friend then left the front seat and went to the back seat of the car. The young woman reported the occurrence shortly after it happened. The evidence given by the prosecuting witness was corroborated by the appellant's friend who told of her resistance and of her crying and begging the appellant not to do that to her. The appellant admitted the act of intercourse but claimed that the girl was willing and co-operative.

The jury found the appellant guilty as charged and he then moved for a new trial and that motion having been overruled, judgment having been entered, and sentence pronounced, this appeal followed.

It is first complained that the court erred in refusing to grant a change of venue from the county. It is admitted that a request for a change of venue from the county in a noncapital case invokes the discretion of the trial court. Smith v. State, 1917, 186 Ind. 252, 115 N.E. 943; Anderson v. State, 1941, 218 Ind. 299, 32 N.E.2d 705. The affidavits which were filed in support of the motion for the change from the county have not been brought into the record by a bill of exceptions and are not a part of the record under the authorities of this state. Keene v. Russell, 1881, 80 Ind. 163; Thomson et al. v. Madison Building and Aid Association, 1885, 103 Ind. 279, 2 N.E. 735; Gerking v. Johnson, 1942, 220 Ind. 501, 44 N.E.2d 90. However, the court has examined the affidavits as set out in the brief of the appellant and from their contents we cannot say that there was any abuse of discretion.

The appellant complains that the witness, Eldon Schwartz, remained in the courtroom during the time that Doctor Wilhelm was on the witness stand and testifying. The applicable rule relative to this question is well stated in the case of Romary v. State, 1945, 223 Ind. 667, 674, 64 N.E.2d 22, 24, where it is said:

'The separation of witnesses at a crial is wholly within the discretion of the trial court. Coolman v. State, 1904, 163 Ind. 503, 72 N.E. 568. 'Such separation is not required by statute, nor by any rule of the common law. When asked for, it is granted, not of right, but as a favor.' * * * When an order separating witnesses is disobeyed by a witness, it is in the discretion of the court to permit the examination of such disobedient witness.'

The matter was within the discretion of the court. No abuse of that discretion has been shown. See Underhill's Criminal Evidence, 4th Ed., § 404, p. 821.

Complaint is likewise made because a police officer sat at the counsel table in the courtroom. No authority is cited for the above complaint and no showing of harm to the appellant is even claimed. The trial judge had some discretion in the trial of the cause and in the absence of a showing of harm the appellant should not be heard to complain.

It is next contended that the court erred in permitting the prosecuting witness to answer a question relative to the circumstances surrounding the act of rape with which appellant was charged. The objection made at the trial was that it had been gone into before and was mere reiteration. The objection now urged to the above question and used under propositions, points and authorities in his brief is that pain and suffering are outside the issue of rape. The objection raised below is the only one that can be asserted in this appeal and the appellant cannot now assert a different one than that presented to the trial court.

In the case of Pulley v. State, 1910, 174 Ind. 542, 544, 92 N.E. 550, 551, this court made the following observation:

'It is well settled that party who objects to evidence must state the grounds of his objection particularly, and if the evidence is received over his objection he must, on appeal to this court, be confined to such specific objection. He cannot, in this court, successfully urge any other objection, however valid such new objection may be.'

The above case and Thompson v. State, 1871, 38 Ind. 39, were cited to support the claims of the...