Messel v. State

• Decision Date: 27 June 1911
• Docket Number: No. 21,844.,21,844.
• Parties: MESSEL v. STATE.
• Court: Indiana Supreme Court

176 Ind. 214

95 N.E. 565

MESSEL

v.STATE.

No. 21,844.

Supreme Court of Indiana.

June 27, 1911.

Appeal from Circuit Court, Vanderburgh County; C. A. De Bruler, Judge.

Clark Messel was convicted of rape and he appeals. Affirmed.

Ernest J. Crenshaw, for appellant. Thomas M. Honan, Thos. N. Branaman, Edwin Corr, and Jas. E. McCullough, for the State.

COX, J.

Appellant was convicted by a jury of the crime of rape, his 11 year old daughter being the victim, and was adjudged to suffer imprisonment for life as his punishment as provided by the Criminal Code (Burns 1908, § 2250).

From the judgment of conviction this appeal is prosecuted on one assignment of error—that the trial court erred in overruling the motion for a new trial. Under this assignment of error, it is stated in the brief of appellant that the errors relied on for reversal are (1) in the admission of certain designated testimony over appellant's objection; (2) in the court's refusal to strike out that testimony; (3) in overruling a motion claimed to have been made by appellant at the close of the testimony for the state to instruct the jury to find for the appellant; (4) that the court erred in failing to instruct the jury as to the different degrees of, or offenses included in, the crime as charged in the indictment, and in instructing the jury as to the crime of rape only.

[1] A rigid adherence to the fifth clause of rule 22 (55 N. E. vi) of the rules of this court would prevent a consideration of any of these questions, for there is a failure to make appellant's brief comply with the requirements of that part of the rule. The motion for a new trial is not set out therein or any part of it, nor is any motion for such peremptory instructions, nor are any instructions either given or offered and refused, and disconnected fragments of the testimonyof a part only of the witnesses who testified in the case is set out. But, as the offense of appellant is of the gravest and most atrocious character, his punishment fixed by law and the sentence of the court severe, as he prosecutes his appeal as a poor person, as his counsel is manifestly of limited experience, and as the case must be affirmed in any event, we therefore give consideration to the questions sought to be presented. But in doing this in this instance we do not want to be understood as intending to weaken the force of the rule named, which was promulgated for a salutary purpose, or in any sense approving or excusing a neglect to comply with it.

[2] Two practicing physicians and surgeons, one the police surgeon of the city of Evansville and the other coroner of Vanderburgh county, were called as witnesses for the state, and were permitted to testify, over the objection of appellant, that they had made a physical examination of the child victim of the alleged crime, to detail the condition of her person with relation to such crime as they found it to be, and to give their opinions that such condition was due to sexual connection. The reception of this testimony and refusal to strike it out form the basis of appellant's first and second presentation of error as above stated. That the court did not so err is clear and firmly settled. Polson v. State, 137 Ind. 519, 35 N. E. 907;People v. Benc, 130 Cal. 159, 62 Pac. 404;People v. Figueroa, 134 Cal. 159, 66 Pac. 202;State v. King, 117 Iowa, 484, 91 N. W. 768;Gifford v. People, 148 Ill. 173, 35 N. E. 754;State v. Teipner, 36 Minn. 535, 32 N. W. 678;State v. Scott, 172 Mo. 536, 72 S. W. 897;Pless v. State, 23 Tex. App. 73, 3 S. W. 576; Lawson, Expert and Opinion Ev. (2d Ed.) p. 123; Underhill, Crim. Ev. (2d Ed.) § 412; 33 Cyc. pp. 1470, 1475.

The objection is made that the testimony did not connect the appellant with the condition of the child as a cause. This was not necessary. Two things were necessary to be proven beyond a reasonable doubt it is true before appellant could be convicted, namely, the corpus delicti—the fact that the crime of rape had been committed on the child—and the agency of appellant in the commission of that crime. The evidence under consideration was competent and material evidence in proving the first. With the fact proven beyond a reasonable doubt that she had been sexually used, and also that she was under 12 years of age, the corpus delicti would be proven, for, being unable to give consent, sexual connection with her would be within the ban of the law. It must be obvious that proof of the corpus delicti may be made without first connecting the person charged. People v. Tarbox, 115 Cal. 57, 46 Pac. 896;People v. Darr, 3 Cal. App. 50, 84 Pac. 457.

That there was ample evidence to submit the question of appellant's guilt to the jury and indeed to fully sustain their verdict seems to us to be entirely clear. At the trial the child did not testify. The evidence shows that she died three days after the appellant's arrest, but from what cause it does not appear. It shows that she was then but two weeks more than 11 years old. The two physicians before referred to testified in behalf of the state to the examination which they had made on the person of the child, and stated that they found the outer parts of her sexual organs enlarged, the hymenial membrane totally destroyed, and such a condition present as in their opinion could only have been caused by sexual connection. An officer of the local board of children's guardians testified the child had made complaint to him of appellant's conduct towards her. This officer also testified that appellant had admitted to him that he had subjected the child to intercourse with him, and gave the confession in detail. He further testified that, when appellant was arraigned in the city court for preliminary examination, he had pleaded guilty. Like testimony of admissions of guilt and of appellant pleading guilty in the city court was given in behalf of the state by two other witnesses, members of the detective force of the city of Evansville.

[3] It was competent to prove the fact that the victim of the alleged crime made complaint, although she was not a witness. This is the rule where the victim is dead or is incompetent to testify by reason of infancy or imbecility, but it does not permit of course proof of what she said. People v. Figueroa, 134 Cal. 159, 66 Pac. 202; 33 Cyc. 1468.

[4] The corpus delicti may be proved by circumstantial evidence the same as any other material fact necessary to be proved. Flower v. United States, 116 Fed. 241, 247, 53 C. C. A. 271;Dimmick v. United States, 135 Fed. 257, 263, 70 C. C. A. 141;Isaacs v. United States, 159 U. S. 487, 490, 16 Sup. Ct. 51, 40 L. Ed. 229;Stocking v. State, 7 Ind. 326, 330;McCulloch v. State, 48 Ind. 109, 112, 113;Seifert v. State, 160 Ind. 464, 470, 67 N. E. 100, 98 Am. St. Rep. 340;Griffiths v. State, 163 Ind. 555, 558, 559, 72 N. E. 563; 12 Cyc. 488; 6 Am. & Eng. Ency. of Law (2d Ed.) p. 582, and...