Kuslulis v. State, 25637.
| Decision Date | 11 April 1930 |
| Docket Number | No. 25637.,25637. |
| Citation | 171 N.E. 5,201 Ind. 660 |
| Parties | KUSLULIS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
John Kuslulis was convicted of assault and battery with intent to rape, and he appeals.
Affirmed.
George P. Rose, of Gary, for appellant.
Arthur L. Gilliom, Atty. Gen., and Bernard A. Keltner, Deputy Atty. Gen., for the State.
This is an appeal from the judgment of conviction of the crime of assault and battery with intent to rape upon Alice Huebner, a female child under the age of twelve years.
On the 30th day of June, 1927, an affidavit was filed in the Lake criminal court at Crown Point, Ind. On the same day, the defendant was arrested and gave bail. On the 12th day of April, 1928, appellant waived arraignment and pleaded not guilty, and waived a trial by jury. The cause was submitted to the court for hearing and trial. On the 16th day of April, 1928, the trial was completed and the court found appellant guilty as charged in the indictment. On the 23d day of April, 1928, the appellant filed his motion for a new trial. On the 27th day of April, 1928, the motion for a new trial was overruled, to which ruling of the court the appellant then and there excepted. On the 24th day of May, 1928, the court rendered judgment against appellant, sentencing him to the Indiana State Prison for a period of not less than one nor more than ten years, and to pay the costs of this prosecution. The appellant prayed an appeal to the Supreme Court, which was granted.
The affidavit alleges that on or about the 4th day of June, 1927, at and in the county of Lake, state of Indiana, John Kuslulis did then and there unlawfully and feloniously touch one Alice Huebner, a female child under twelve years of age, in a rude and insolent manner and her, the said John Kuslulis, did then and there unlawfully and feloniously ravish and carnally know.
After the trial of the case, the court read the following finding: “Comes now the State of Indiana by its Prosecuting Attorney and comes also the defendant in his own proper name and person and by counsel, and the trial of this cause is now resumed, pursuant to adjournment of April 12th, 1928, and after all the evidence is heard, both sides rest, and the court after being fully advised in the premises, now finds that the defendant is guilty of assault and battery with intent to commit rape, as charged; that he is thirty-two (32) years of age and that he be imprisoned at the Indiana State Prison for a period of not less than one nor more than ten years and pay the costs of this prosecution.”
In his motion for a new trial, the defendant alleges the following reasons: (1) The finding of the court is not sustained by sufficient evidence. (2) The finding of the court is contrary to law. (3) For newly discovered evidence material to this defendant, which he could not with reasonable diligence have discovered and produced at the trial, the particulars thereof will fully appear in the affidavit of this defendant and of one Tom Dolla and one D. A. Farster, attached and made a part hereof, to which defendant here now makes reference.
[1] On appeal, the appellant makes the following assignment of error: The court erred in overruling appellant's motion for a new trial.
Under points and authorities, appellant says in his brief that the finding of the court is not sustained by sufficient evidence. The evidence in this case was positive so far as the prosecuting witness was concerned. It appears from said evidence that the appellant repeatedly had sexual intercourse with this child, covering a period of several months. The evidence shows that the prosecutrix was, when such acts occurred, under twelve years of age.
There was no motion made by appellant to require the state to elect upon which particular act, as shown by the evidence, it relied for conviction, so no question arises upon the evidence offered. Bartlow v. State, 183 Ind. 398, 109 N. E. 201. The series of acts committed by the appellant in this case, as shown by this evidence, were all within five years prior to the filing of the affidavit, and took place in the county and state alleged in the affidavit. The evidence was therefore sufficient to sustain the finding of the court.
[2] The appellant contends that the finding of the court is contrary to law because it found the defendant guilty of assault and battery with intent to commit rape, when in fact the evidence shows that the rape was committed. This objection is not sustained by authority. The finding of the court that the appellant was guilty of a lesser offense is not contrary to law. See Chesterfield v. State, 194 Ind. 282, 141 N. E. 632;Polson v. State, 137 Ind. 519, 35 N. E. 907;Hanes v. State, 155 Ind. 112, 57 N. E. 704.
[3] The appellant contends that the testimony of the prosecutrix is so unreasonable that no conviction can be based upon it. He also contends that the conviction cannot be had upon the testimony of the prosecutrix alone. These contentions are not tenable. See Chesterfield v. State, supra; Ginter v. State, 189 Ind. 672, 128 N. E. 834, 835;Lowery v. State, 196 Ind. 316, 147 N. E. 151, 152, 148 N. E. 197.
In Ginter v. State, supra, the conviction was upon the testimony of the prosecutrix alone, and it was claimed in that case, as in this, that the story of the prosecuting witness was unbelievable because so unreasonable, and the court in that case stated: ...
To continue reading
Request your trial