Koehler v. State
| Decision Date | 25 April 1919 |
| Docket Number | 23,387 |
| Citation | 123 N.E. 111,188 Ind. 387 |
| Parties | Koehler v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied June 26, 1919.
From Allen Circuit Court; William H. Eichhorn, Special Judge.
Prosecution by the State of Indiana against John H. Koehler. From a judgment of conviction, the defendant appeals.
Affirmed.
Samuel M. Hench, W. C. Ryan and L. H. Dunten, for appellant.
Ele Stansbury, Attorney-General, Elmer E. Hastings, Dale F Stansbury and Franklin A. Emerick, for the state.
Appellant was tried and convicted upon an indictment returned by a grand jury of Allen county charging him with carnal knowledge of a female child under sixteen years of age. Acts 1907 p 85, § 2250 Burns 1914.
In this court the only errors well assigned and not waived are: (1) That the trial court erred in overruling his motion to quash the indictment and each count thereof; (2) that the trial court erred in overruling his motion for a new trial.
The only point made against each count of the indictment is that it fails to state that the county of Allen is in the State of Indiana. This identical question has been decided by this court against appellant's contention in Anderson v. State (1886), 104 Ind. 467, 4 N.E. 63, 5 N.E. 711. In that case it was held that under our Criminal Code the caption and upper marginal title is to be considered a part of the indictment.
The indictment in the case at bar with reference to the caption and marginal title reads as follows:
Indictment for Rape.
"The grand jury of the County of Allen upon their oath, do present that on the day of August, 1916, John H. Koehler at the County of Allen in the State of Indiana * * *."
It is perfectly clear from that part of the indictment quoted that it was returned into the Allen Circuit Court by a grand jury of Allen county which is stated in the caption to be in the State of Indiana. The offense is directly charged to have been committed in "Allen county, Indiana." The objection of appellant is not well taken, and the motion to quash was properly overruled. Winegardner v. State (1913), 181 Ind. 525, 104 N.E. 969; Long v. State (1877), 56 Ind. 182, 26 Am. Rep. 19; Turpin v. State (1881), 80 Ind. 148; Hawkins v. State (1894), 136 Ind. 630, 36 N.E. 419.
Appellant in support of his motion for a new trial has assigned many reasons, nearly all of which pertain to the admission or rejection of evidence at the trial. A number of these specifications present no question, therefore we shall give attention only to such specifications as are reasonably before the court.
It is first contended that the court erred in permitting the mother of the prosecuting witness to testify to a conversation had with the accused, or in his presence, as to the girl's age, in which she said that she was keeping her daughter back from high school. The question was objected to on the ground that it called for a conversation prior to the time of the alleged offense; that it was in the nature of hearsay, and that her age at that time was immaterial. The witness had testified that the prosecuting witness was fourteen years of age at the time of the trial, and from the record we learn the trial was begun on June 18, 1917. It appears that the conversation inquired about took place after February, 1915, and before the offense was committed in August, 1916. This testimony tended to show knowledge on the part of the defendant of the girl's age, a fact not incumbent on the state to prove, yet it was proper for the purpose of showing guilty knowledge. Appellant's objection was not well taken.
It is further insisted that the trial court erred in permitting the prosecuting witness to explain why she wrote a certain letter to the appellant which had been read in evidence on the part of the defense. The effect of this letter was to exonerate appellant from the offense for which he was then on trial, and to contradict the evidence of the prosecuting witness given at the trial. It is clearly the right of a witness to explain or reconcile any inconsistent utterances as well as the situation or condition under which such contradictory statements are made, and to have such explanations submitted to the jury. Underhill, Crim. Ev. (2d ed.) § 238; Buehner v. Feulner (1904), 164 Ind. 368, 374, 73 N.E. 816.
Appellant insists that the court erred in permitting a witness to detail a conversation had with the appellant, wherein she (witness) stated that she (witness) told the appellant that he had no business to go with the prosecuting witness; that they would get caught, and that appellant said they wouldn't catch him, and if they got caught it would be all right with him. The objection urged to the question calling for this testimony was that this conversation took place prior to the time fixed when the offense was committed; that it raised a collateral issue. While this testimony was in the nature of an admission, it was competent for the purpose of showing the acquaintance, associations and familiarity of the parties.
Appellant also complains of the action of the trial court in permitting the prosecuting attorney to ask him on...
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