Messel v. The State

• Decision Date: 27 June 1911
• Docket Number: 21,844
• Citation: 95 N.E. 565,176 Ind. 214
• Parties: Messel v. The State of Indiana
• Court: Indiana Supreme Court

95 N.E. 565

176 Ind. 214

Messel v. The State of Indiana

No. 21,844

Supreme Court of Indiana

June 27, 1911

From Vanderburgh Circuit Court; Curran A. DeBruler, Judge.

Prosecution by The State of Indiana against Clark Messel. From a judgment of conviction, defendant appeals.

Affirmed.

Ernest J. Crenshaw, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION

Cox, J.

Appellant was convicted by a jury of the crime of rape, his eleven year old daughter being the victim, and was adjudged to suffer imprisonment for life as his punishment, as provided by the criminal code. § 2250 Burns 1908, Acts 1907 p. 85.

From the judgment of conviction this appeal is prosecuted on the assignment of error that the trial court erred in overruling the motion for a new trial.

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

A rigid adherence to the fifth clause of rule twenty-two 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 brief does not contain, in whole or in part, either the motion for a new trial or the motion for a peremptory instruction, or any instructions either given, or offered and refused. Disconnected fragments of the testimony of a part only of the witnesses are 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, that was promulgated for a salutary purpose, or in any sense approving or excusing a neglect to comply with it.

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 the refusal to strike it out, form the basis of appellant's first and second presentation of error, as before stated. That the court did not so err is clear and firmly settled. Polson v. State (1894), 137 Ind. 519, 35 N.E. 907; People v. Benc (1900), 130 Cal. 159, 62 P. 404; People v. Figueroa (1901), 134 Cal. 159, 66 P. 202; State v. King (1902), 117 Iowa 484, 91 N.W. 768; Gifford v. People (1893), 148 Ill. 173, 35 N.E. 754; State v. Teipner (1887), 36 Minn. 535, 32 N.W. 678; State v. Scott (1903), 172 Mo. 536, 72 S.W. 897; Pless v. State (1887), 23 Tex. Ct. App. 73, 3 S.W. 576; Lawson, Expert and Opinion Ev. (2d ed.) p. 123; Underhill, Crim. Ev. (2d ed.) § 412; 33 Cyc. 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 proved beyond a reasonable doubt 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 in proving the first. With the fact proved beyond a reasonable doubt that she had been sexually used, and also that she was under twelve years of age, the corpus delicti would be proved, 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 (1896), 115 Cal. 57, 46 P. 896; People v. Darr (1906), 3 Cal.App. 50, 84 P. 457.

That there was ample evidence to submit the question of appellant's guilt to the jury, and fully to 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 eleven years old. The two physicians before referred to testified in behalf of the State to the examination that they had made of 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 that the child had made complaint to him of appellant's conduct toward 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's 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. 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, supra; 33 Cyc. 1468.

The corpus delicti may be proved by circumstantial evidence the same as any other material fact necessary to be proved. Flower v. United States (1902), 116 F. 241, 247, 53 C. C. A. 271; Dimmick v. United States (1905), 135 F. 257, 263, 70 C. C. A. 141; Isaacs v. United States (1895), 159 U.S. 487, 490, 16 S.Ct. 51, 40 L.Ed. 229; Stocking v. State (1855), 7 Ind. 326, 330; McCulloch v. State (1874), 48 Ind. 109, 112, 113; Seifert v. State (1903), 160 Ind. 464, 470, 98 Am. St. 340, 67 N.E. 100; Griffiths v. State (1904), 163 Ind. 555, 72 N.E. 563; 12 Cyc. 488; 6 Am. and Eng. Ency. Law (2d ed.) 582, and authorities cited; 7 Am. and Eng. Ency. Law (2d ed.) 862, 863; Gillett, Crim. Law (2d ed.) § 873.

The extra-judicial confession of the defendant alone is not sufficient to prove the corpus delicti; but such confession may be considered with independent corroborative facts, not of themselves sufficient to prove the corpus delicti beyond a reasonable doubt, to prove that the offense was committed. 6 Am. and Eng. Ency. Law (2d ed. 569 582; 12 Cyc. 484; State v. Guild (1828), 10 N.J.L. 192, 18 Am. Dec. 404; Winslow v. State (1884), 76 Ala. 42, 47; Sullivan v. State (1899), 40 Tex. Crim. 633, 51 S.W. 375; Ryan v. State (1893), 100 Ala. 94, 95, 14 So. 868; People v. Badgley (1836), 16 Wend. 53, 59; State v. Hall (1888), 31 W.Va. 505, 509, 7 S.E. 422; Gray...