Mathews v. State, 31063

• Decision Date: 12 July 1967
• Docket Number: No. 31063,31063
• Citation: Mathews v. State, 228 N.E.2d 1, 248 Ind. 563 (Ind. 1967)
• Parties: Robert Barclay MATHEWS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1

228 N.E.2d 1

248 Ind. 563

Robert Barclay MATHEWS, Appellant, v. STATE of Indiana, Appellee.

No. 31063.

Supreme Court of Indiana.

July 12, 1967.

Rehearing Denied Oct. 11, 1967.

Palmer K. Ward, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

MOTE, Judge.

The Appellant, Robert Barclay Mathews, was charged with the crimes of kidnapping and rape by an indictment in two counts returned by the Marion County Grand Jury. The issues were closed upon a plea of not guilty. The trial was had, without the intervention of a jury, resulting in a finding of not guilty as to Count One (kidnapping) and a finding of guilty as to Court Two (rape). Appellant was sentenced to the Indiana State Prison for a period of not less than two nor more than twenty-one years; he was fined $1.00 and costs and disfranchised and rendered incapable of holding any office of trust or benefit for three years.

Count Two of the indictment, omitting the formal parts thereof, reads as follows:

'And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that the said Robert Barclay Mathews and James H. Taylor, on or about the 11th day of October, A.D.1965, at and in said County and said State, did then and there unlawfully and feloniously make an assault on and upon one Judith Ann Adair, then and there being a female child under the age of sixteen (16) years towit: of the age of fourteen (14) years, then and there not being the wife of the said Robert Barclay Mathews or James H. Taylor, or either of them, and did then and there unlawfully and feloniously ravish and carnally know her the said Judith Ann Adair, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Appellant asserts that there was not one scintilla of evidence to support a conviction for the reason that there is no proof of penetration by Appellant upon and into the body of the prosecuting witness, Judith Ann Adair. In this connection, Appellant further states that the State of Indiana did not ask the prosecuting witness one question concerning the alleged rape, although she was produced by the Appellee and qualified. Appellant further states that there is no substantial evidence of probative value upon which a reasonable inference of guilty could be drawn by the trial court.

A witness, James H. Taylor, testified that on October 11, 1965, he was with the Appellant; that they saw a girl who was crying for help; that Appellant said he knew her and told her to get into the car; that Appellant and he were in the front seat and that she got into the rear seat of the car; that they parked on Bloyd and he had sex relations with Judy; that Appellant said she was his girl and...