Meeks v. State, No. 30910

• Docket Nº: No. 30910
• Citation: 234 N.E.2d 629, 249 Ind. 659
• Case Date: March 01, 1968
• Court: Supreme Court of Indiana

Page 629

234 N.E.2d 629 249 Ind. 659 Bill MEEKS, Appellant,
v.
STATE of Indiana, Appellee. No. 30910. Supreme Court of Indiana. March 1, 1968.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Dennis J. Dewey, Deputy Atty. Gen., Indianapolis, for appellee.

[249 Ind. 660] LEWIS, Chief Justice.

The appellant was indicted in Marion Criminal Court, Division Two, for the crime of rape. The matter was submitted to trial by jury, and it returned a verdict of guilty. The appellant was sentenced to a term of not less than two (2) nor more than twenty-one (21) years.

Appellant claims two (2) alleged errors pursuant to Rule 2--17 of the Supreme Court Rules (1964), the first of which is as follows:

The trial court abused its discretion when it allowed the State of Indiana to introduce evidence that the appellant had committed the offense of rape on a woman other than the prosecuting witness.

The evidence most favorable to the State establishes the following: The prosecuting witness was twenty-six (26) years old and on the evening in question, accompanied by a girl friend, had gone to a tavern where she made the acquaintance of appellant. The prosecutrix and appellant left the tavern in the company of another couple and

Page 630

went to another bar. After leaving the second bar, the prosecutrix and appellant left in appellant's automobile and drove to a location on the outskirts of the City of Indianapolis. The car was parked, and the prosecutrix testified that she left the automobile, started around the rear of said car and started to run; that appellant grabbed her by the hair, threw her back against the car, and finally pushed her into the front seat of the car; that appellant threatened the woman if she yelled, and she fought back and slapped the appellant, and he threatened to kill her; that her head was pinned under the steering wheel and he held one arm behind her body, and while she was in this position he slapped her several times; and that during the course of this conduct he had sexual contact with the woman repeatedly. Prosecutrix testified that she did not at any time give her consent, that she resisted to the extent of her ability, and that she was finally rendered semi-conscious. Later examination by a physician indicated that she was bruised and had contusions on both hips.

[249 Ind. 661] The appellant in his defense admits that the act of sexual intercourse took place, but denied that any force was involved.

The witness, whose testimony appellant assigns as error, testified that appellant had carnal knowledge of her by force approximately thirty-five (35) days prior to the act charged in the indictment. It is the appellant's contention that this evidence was highly prejudicial, and should not have been admitted for the reason that it did not prove any of the essential allegations of the indictment, and since this charge was not set forth in the indictment, it violated the general rule that a defendant is entitled to be informed specifically of the crimes charged and should not be placed in the position of coming to trial uninformed as to the nature of the evidence to be presented against him. 1 Ewbank's Indiana Criminal Law, Symmes Ed., § 384, p. 236, reads as follows:

'Proof by the state of other crimes than the one for which the defendant is on trial is generally not admissible. Such evidence is admissible only where the crime charged has been established and the motive, malice intent or guilty knowledge of the defendant is an issue. Evidence of other crimes than the one charged is also admissible where the evidence discloses a common scheme or plan. This general rule does not apply where the chief element of the offense is illicit intercourse between the sexes; and such evidence of prior and subsequent acts is admissible, subject to exclusion, if in the discretion of the trial court, that it is too remote.'

A full discussion of the general rule and the exception as set out in Ewbank's (supra), including its historic background, is contained in State v. Robbins (1943), 221 Ind....