Leinberger v. State
| Decision Date | 10 January 1933 |
| Docket Number | 25,427 |
| Citation | 183 N.E. 798,204 Ind. 311 |
| Parties | Leinberger et al. v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND INFORMATION---Rape---Offenses Included in Charge.---An affidavit charging the offense of rape includes the charge of the lesser offenses of "attempted rape," "assault and battery," and "assault." p. 312.
2. RAPE---"Attempted Rape"---Application of Statute.---The statute defining attempted rape (2429 Burns 1926, Acts 1921, p. 373) applies only to the offense of assault and battery with the intention of committing rape forcibly and against the will of the female, and does not cover the crimes of rape in which consent of the female is immaterial. p. 313.
3. RAPE---Trial---Verdict---Construction.---In a criminal prosecution for rape the verdict, finding defendant "guilty of assault and battery with intent to rape" instead of "attempted rape" was held sufficient to warrant imposing the punishment defined for "attempted rape." (2429 Burns 1926, Acts 1921, p. 373.) pp. 313 314.
4. CRIMINAL LAW---Trial---Verdict---Not Void for Informalities if Understandable.---A verdict must not be avoided except for necessity, and will not be held bad for informality if the court can understand it. p. 313.
5. CRIMINAL LAW---Trial---Verdict---Construction---Reference to Indictment or Affidavit.---A verdict will be presumed to mean that the defendant is found guilty of, and is subject to punishment for, a crime with which he is charged, and the affidavit may be considered in determining the meaning of the verdict. p. 314.
6. CRIMINAL LAW---Trial---Judgment---Conformity to Verdict---Sufficiency.---Where language of judgment conformed to verdict finding defendant "guilty of the crime of assault and battery with intent to rape" instead of "guilty of attempted rape" under 2429 Burns 1926 and the correct punishment was fixed, the judgment was held sufficient. p. 315.
7. CRIMINAL LAW---Appeal---Motion to Modify Judgment---Necessity for Specific Objections.---In considering the ruling on a motion to modify a judgment, appellate court will only consider the objections particularly pointed out. p. 315.
8. RAPE---Evidence---Instruction to Jury---Regarding Credibility of Prosecutrix---Undue Prominence Thereto.---An instruction in a rape case, advising the jury, with reference to testimony of the prosecutrix, that her evidence should be tested by the same rules as that of other witnesses, and that her testimony, without corroboration, may be sufficient basis for conviction, was not subject to complaint as giving undue prominence to such testimony. p. 315.
9. CRIMINAL LAW---Trial---Instructions---Reading Court Decisions by Counsel.---An instruction which told the jury that extracts from court's decisions, read to jury by counsel in argument, should not be considered by them in determining the law of the case, held improper. p. 315.
10. CRIMINAL LAW---Trial---Instruction as to Character Evidence---Of Prosecuting Witness.---After the defense had rested its case without attacking the reputation of the prosecuting witness in a rape case it was error to permit proof of her general reputation for virtue and chastity by the State and to instruct the jury that such evidence might be considered as affecting her credibility. p. 316.
11. WITNESSES---Credibility---Corroboration of Unimpeached Witness---By Character Evidence.---It is well settled that the character and reputation of a witness is presumed to be good until it is attacked, and the witness not having been impeached, the introducing party may not support the testimony of the witness by evidence of general reputation p. 316.
From Clay Circuit Court; A. J. Miller, Special Judge.
Wayne Leinberger and Robert Gibson were convicted of attempted rape, and they appealed.
Reversed.
Bernard C. Craig, Andrew N. Foley, and C. C. Gillen, for appellants.
Arthur L. Gilliom, Attorney-General, and Bernard A. Keltner, Deputy Attorney-General, for the State.
The defendants were jointly charged by affidavit with rape; were tried and convicted. The jury was correctly charged that the affidavit charging the crime of rape includes the charge of the lesser offenses of "attempted rape," "assault and battery" and "assault." The jury returned a verdict in a form directed by the court as follows: (omitting the formal parts), "We, the jury, find the defendant, Wayne Leinberger, guilty of assault and battery with intent to rape, and that he is 20 years of age, and that he be fined $ 500 (the fine being any sum not exceeding $ 1,000) and imprisoned in the State Prison." The verdict as to Robert Gibson was identical, except as to name and age.
Following the verdict, the court entered judgment that the defendants were guilty "of the crime of assault and battery with intent to rape," and fixed their punishment as a fine in the sum of $ 500 and imprisonment for not less than 5 nor more than 21 years. The fine was the amount fixed by the jury in its verdict, and the imprisonment was that provided for in the last sentence of § 2429 Burns 1926 (Acts 1921, p. 373), defining the crime of "attempted rape."
Defendants moved to modify the judgment by striking out all but so much thereof as provides for a fine of $ 500, and directs the sheriff to execute the sentence, which motion was overruled, and the ruling of the court is assigned as error.
Section 2417 Burns 1926 (Acts 1905, p. 584) describes the crime of assault and battery with intent to commit a felony and provides a penalty of imprisonment for from 2 to 14 years and a fine not exceeding $ 2,000. Prior to the passage of the "attempted rape" statute above referred to, this statute covered an assault and battery with intent to commit any one of the several classes of the crime of rape defined by the rape statute. The later statute now applies to the offense of assault and battery with the intention of committing one of the above defined crimes of rape, namely the first, that is, where the intention was to commit it forcibly and against the will of the female, and does not cover the other crimes of rape in which the consent of the female is immaterial. Chesterfield v. State (1923), 194 Ind. 282, 141 N.E. 632.
It is urged by the...
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