Nichols v. State

Citation252 Ind. 103,246 N.E.2d 179
Decision Date07 April 1969
Docket NumberNo. 1267S135,1267S135
PartiesErnest NICHOLS, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Harold V. Jones, Jr., Columbus, for appellant.

John J. Dillon, Atty. Gen., Duejean C. Garrett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal from a conviction of the appellant, Ernest Nichols for the offense of sodomy. The appellant was charged by affidavit in the Bartholomew Circuit Court and entered a plea of not guilty. He was thereafter tried by a jury and found guilty.

The questions presented by the assignment of error as revealed by the motion for new trial are as follows:

1. Error of law occurring at the trial in that the Court erred in overruling the defendant's motion for a directed verdict at the close of the case of the State of Indiana.

2. Error of law occurring at the trial in that the Court overruled the defendant's motion for a directed verdict at the close of the defendant's case.

3. That the verdict of the jury is contrary to law.

4. That the verdict of the jury is not sustained by sufficient evidence.

Thus the issues presented by this appeal are confined to the question of the sufficiency of the evidence to sustain the conviction, and the denial of appellant's motions for a directed verdict.

To support his argument as to the insufficiency of the evidence, the appellant asserts that all the material statements by the state's witnesses have been controverted; that the prosecuting witness in his testimony made contradictory statements; that said contradictions and other discrepancies between the testimony of the prosecuting witness and a corroborating witness render such testimony devoid of a factual base sufficient for a conviction.

At the close of the state's evidence and, again, at the conclusion of all the evidence the defendant moved for a directed verdict. The court overruled both motions, and the appellant contends the court's action was reversible error. In the case of Warren v. State (1963), 243 Ind. 508, 518, 188 N.E.2d 108, 112--113, this court stated:

'* * * (A) peremptory instruction of acquittal in a criminal case is only proper where there is a total absence of probative evidence upon some essential issue, or where there is no conflict in the evidence and it is susceptible of but one inference which is in favor of the accused. Here the determination of the issue involved the weight of the evidence on the credibility of witnesses and it would have been an invasion of the province of the jury for the court to direct a verdict.' (emphasis added)

The evidence most favorable to the state may be summarized as follows:

On June 19th, 1967, the prosecuting witness, age thirteen (13), was at his home in Columbus, Indiana. The house was also occupied by his two brothers: age eleven (11), and seven (7). The prosecuting witness testified that it was about twelve-thirty when the appellant Ernest Nichols came to the house.

Ernest Nichols testified that the reason he had gone to the home was to return a shirt which he had borrowed from one of the older brothers. Upon arriving at the house, the appellant was admitted by the eleven year old who was told that Nichols had come to return the shirt. The prosecuting witness was sitting on the couch, and Ernest Nichols asked him for a piece of candy to which the boy replied 'Let me see your thing and I'll give you a piece.' The victim testified that the appellant then threw him on the floor, and, while the prosecuting witness was lying on his back, Nichols sat on top of him with his knees against the boy's arms holding him down as he tried to struggle free. As the prosecuting witness was struggling to free himself, he attempted to yell, and, at that point, Ernest Nichols put his 'thing' into the boy's mouth. The 'thing' the witness was referring to was the penis of Ernest Nichols. Appellant continued to keep his penis in the boy's mouth for four or five minutes. During this period of time, the eleven year old brother attempted to help the victim free himself from the grip of Ernest Nichols by trying to strike the appellant with a pop bottle but was unsuccessful. The appellant finally released his victim, laughed at him, then left the house.

It is abundantly clear from the above recital of the record evidence that there was sufficient evidence of probative value to sustain the court's ruling denying the appellant's motion for a directed verdict at the close of all the evidence. We therefore hold the court committed no error in submitting the cause to the jury.

The appellant's specifications of error numbered 3 and 4 present only a question of the sufficiency of the evidence to sustain the verdict. The general rule is that the verdict of the jury will not be disturbed by this court if there is substantial evidence of probative value to sustain each material element of the crime charged. Harris v. State (1967), Ind., 231 N.E.2d 800. When the question of the...

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1 cases
  • Geisleman v. State
    • United States
    • Indiana Supreme Court
    • 30 Septiembre 1980
    ...her testimony, however, were questions for the jury. See Choctaw v. State, (1979) Ind., 387 N.E.2d 1305, 1307; 1 Nichols v. State, (1969) 252 Ind. 103, 107, 246 N.E.2d 179, 181. "It is apparent that the jury believed the prosecuting witness's account of the events and disbelieved appellant'......

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