Miller v. Rayburn

• Decision Date: 07 December 1917
• Docket Number: No. 9442.,9442.
• Citation: 117 N.E. 879,67 Ind.App. 564
• Parties: MILLER v. RAYBURN.
• Court: Indiana Appellate Court

67 Ind.App. 564

117 N.E. 879

MILLER

v.RAYBURN.

No. 9442.

Appellate Court of Indiana, Division No. 1.

Dec. 7, 1917.

Appeal from Circuit Court, Greene County; Theodore E. Slinkurd, Judge.

Action by Jennie Rayburn against William A. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry R. Lewis and William H. Hill, both of Vincennes, and Webster V. Moffett, of Bloomfield, for appellant. Leroy M. Wade, of Vincennes, Arnold J. Padgett, of Washington, and Guy H. Humphreys, of Bloomfield, for appellee.

FELT, J.

This is an action by appellee, Jennie Rayburn, against appellant, for damages for an alleged assault and rape. The complaint, in one paragraph, was answered by a general denial. A trial by jury resulted in a verdict for $2,500. Appellant's motion for a new trial was overruled, judgment was rendered on the verdict, and an appeal prayed and granted. The error assigned and relied on for reversal is the overruling of appellant's motion for a new trial. A new trial was asked on the ground that the verdict is not sustained by sufficient evidence; that it is contrary to law and error in the giving and the refusal of certain instructions.

The main contention as to the evidence is that appellee's account of the several alleged assaults is unreasonable and unbelievable because of inconsistencies and alleged impossibilities. The evidence is long, and there is no necessity for setting it out in this opinion. Appellee testified to a number of assaults and attempts on the part of appellant to have sexual intercourse with her, that he took hold of her person and clothing, exposed his person in a lascivious way, and on one occasion threw her down and accomplished his purpose without her consent and against her will; that her foot caught in some sacks on the floor of the chicken house where she was assaulted, and appellant pushed her over or threw her down; that she struggled and resisted him as much as she could under the circumstances, but without avail. Appellant's testimony was, in substance, a denial of practically everything sworn to by appellee that in any way related to the issues of the case.

[1] The question was one of credibility. The jury saw the parties, heard the testimony, and decided in appellee's favor. The alleged inconsistencies do not take the case out of the well-established rule of this court that where the evidence is conflicting, and there is some evidence to sustain the verdict, the court on appeal will not disturb the finding of the jury. There is some evidence tending to sustain every material averment of the complaint. Rahke v. State, 168 Ind. 615, 622, 623, 81 N. E. 584;McGlone v. Hauger, 56 Ind. App. 243, 104 N. E. 116.

[2] Appellant complains of the action of the court in giving a number of instructions tendered by appellee, which it asserts were verbatim copies of the essential portions of instructions given by the court of its own motion. The court did in effect duplicate several instructions on the same subject by giving its own and also those tendered by the parties.

The instructions complained of in...