Liechty v. State, 25,257

Citation169 N.E. 466, 202 Ind. 66
Case DateJanuary 09, 1930
CourtSupreme Court of Indiana

Rehearing Denied June 25, 1930.

From Adams Circuit Court; Jesse C. Sutton, Judge.

Ervin Liechty was convicted of the crime of rape on a girl under the age of consent, and he appealed.


R. C Parrish, David E. Smith and William C. Geake, for appellant.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Deputy Attorney-General, for the State.


Willoughby, J.

This prosecution was commenced by the State of Indiana, by filing an affidavit in the Adams Circuit Court, charging that the appellant, on June 7, 1925, in the county of Adams, State of Indiana, did then and there feloniously and unlawfully make an assault in and upon one Dorothy Kelsey, then and there being a female child under the age of 16 years, to wit, 14 years and nine months, and did then and there feloniously and unlawfully ravish and carnally know her, the said Dorothy Kelsey. The appellant waived arraignment and pleaded not guilty, and the cause was submitted to a jury for trial. The jury returned a verdict of guilty. A motion for a new trial was filed and overruled and judgment entered on the verdict, and from such judgment this appeal is taken.

The only error assigned is that the court erred in overruling appellant's motion for a new trial.

In his motion for a new trial, the appellant alleges 56 grounds, the 55th reason being that the verdict of the jury is contrary to law, and the 56th being that the verdict is not sustained by sufficient evidence.

The appellant claims that it was error for the court, of its own motion, to give instruction No. 2, because, he says, the court should not pick out portions of the statute, construe the meaning of parts of it, and give its construction to the jury trying the cause, but the entire statute should be embodied in the instruction and correctly given. It was not necessary for the court in any instruction to set out the entire section of statute defining rape. It was enough to call the attention of the jury to the fact that the charge in this case was rape on a female child under 16 years of age. This is the offense charged in the statute, and the court in giving instruction No. 1, set out a copy of the affidavit upon which this prosecution is based and then, in instruction No. 2, the court said, that portion of the section of statute of the State of Indiana, upon which the affidavit in this cause is based, reads as follows: "Whoever unlawfully has carnal knowledge of a male or female under sixteen years of age is guilty of rape."

The appellant in objecting to this instruction says that where an instruction assumes to state all the essential elements of the offense and one or more is omitted, it is erroneous, citing Gillett Criminal Law (2d ed.) § 915. This section of Gillett's Criminal Law does not support appellant's contention, but said section says: "It is settled by abundant authority that error cannot be predicated upon the giving of an incomplete instruction, unless by reason of its abridged character it is in and of itself misleading; the remedy of the complaining party is to tender complete instructions." Appellant also cites Rahke v. State (1907), 168 Ind. 615, 81 N.E. 584, In that case, the charge was assault and battery with intent to commit rape under the first clause of § 2429 Burns 1926, that is, to have carnal knowledge of the prosecuting witness, a woman, forcibly and against her will. To make out a case of assault and battery and to commit the crime of rape as charged, it was necessary to prove beyond a reasonable doubt that the same was committed by having carnal knowledge of a woman forcibly and against her will. Force is an essential element of the crime of rape as charged in the first clause of the statute defining rape. Appellant goes on further to say that in that case, Rahke v. State, supra, the court said all females of the human species 14 years of age and over are termed women within the first clause of the statute defining rape. The prosecution of the Rahke case was commenced under Acts 1905 p. 584, § 361. The statute of 1905 p. 584, fixed the age of consent at 14 years, and that statute was amended by Acts 1907 p. 85, and, in such amendment, the age of consent was raised to 16 years, and there it has remained. See Acts 1913 p. 267; Acts 1921 p. 373.

The prosecution in the instant case is upon that provision in the statute, § 2429 Burns 1926, forbidding the offense upon a female under 16 years of age. This instruction does not omit any material element of the offense.

In instruction No. 1, where the offense is described in the affidavit, the prosecuting witness is referred to as a female child under 16 years of age, and her name given as Dorothy Kelsey. Again, in instructions Nos. 9 and 10, given by the court of its own motion, this person, upon which the offense is alleged to have been committed, was described as a female child. There can be no doubt from the use of the language in these three instructions that the female referred to in instruction No. 2 is the same person named in the affidavit as Dorothy Kelsey.

Mere verbal inaccuracies in instructions, or technical errors in the statement of abstract propositions of law, furnish no grounds for reversal, when they result in no substantial harm to the defendant, if the instructions, taken together, correctly state the law applicable to the facts of the case. Stout v. State (1883), 90 Ind. 1.

In Cooper v. State (1889), 120 Ind. 377, 22 N.E. 320, the trial court in defining the offense of voluntary manslaughter had omitted the word "voluntary," but in other respects the definition followed the statute literally. This court said in that case: "It is not perceived how the defendant could have been prejudiced by the omission of this word. Besides, the omitted word was in effect supplied in an instruction subsequently given. The rule is firmly established that if, upon considering all the instructions together, it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate."

In the instant case, the instruction, in setting out a portion of the statute on which this prosecution is based, omitted the word "child," but such omission could not have any effect upon the meaning of the instruction when taken in connection with the offense described in the affidavit, and for which the appellant was being tried. The jury must be presumed to have some knowledge of the English language and a fair amount of intelligence, and we cannot assume in this case that they were misled by the omission of the word "child," in the second instruction.

The appellant claims that the court erred in giving instruction No. 3, on motion of the State. Said instruction No. 3 is as follows: "The credibility of any witness may be impeached by proof that he has made statements out of court contrary to and inconsistent with what he testifies to on the trial concerning matters material and relevant to the issues joined. And in this case if any witness has been thus impeached about material matters relevant...

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