Parrett v. State

• Decision Date: 31 January 1928
• Docket Number: 25077.,Nos. 25073,s. 25073
• Parties: PARRETT v. STATE. SHINE et al. v. SAME.
• Court: Indiana Supreme Court

200 Ind. 7

159 N.E. 755

PARRETT

v.STATE.

SHINE et al.

v.SAME.

Nos. 25073, 25077.

Supreme Court of Indiana.

Jan. 31, 1928.

Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.

Robert F. Parrett and Raymond Francis Shine and another were convicted of rape, and they separately appeal. Affirmed.Morton C. Embree and Lucius C. Embree, both of Princeton, and Woodfin D. Robinson and Wm. E. Stilwell, both of Evansville, for appellants.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J.

The appellants in each of the above–entitled cases were convicted of the crime of rape upon the person of Elnora Barth, a woman 24 years of age. The prosecution was instituted by affidavit filed in the Vanderburgh circuit court on the 15th day of September, 1925. The charging part of the affidavit is as follows:

“State of Indiana, Vanderburgh County—ss.:

Elnora Barth, being duly sworn upon her oath, says that Robert F. Parrett, Raymond Francis Shine, and Wilmer McGowan, on or about the 23d day of August, A. D. 1925, at said county, as affiant verily believes, did then and there unlawfully and feloniously have carnal knowledge of one Elnora Barth, a woman, forcibly and against her will, then and there being contrary to the form of the statute, in such cases made and provided, and against the peace and dignity of the state of Indiana.

Elnora Barth.”

The appellant Robert F. Parrett demanded and received a separate trial. The other appellants were tried jointly. There was a trial by jury, which resulted in a verdict of guilty of the crime of rape against each of the appellants. Final judgments were rendered on each of the verdicts. From such judgments this appeal is taken. The appellants, Raymond Francis Shine, and Wilmer McGowan, assign errors separately and also jointly alleging that the court erred in overruling the motions to quash and the motions in arrest of judgment and each of them. Said appellants also allege error in overruling their motions and each of them for a new trial. Appellant Parrett alleges that the court erred in overruling his motion for a new trial and also his motion in arrest of judgment.

[1] Appellants have filed their petition for oral argument, but they have briefed their cases so thoroughly and stated their position with reference to the questions involved so clearly, that nothing would be gained by an oral argument. Under such circumstances this court will deny oral argument. Young v. State, 194 Ind. 221, 141 N. E. 309.

The appellants Shine and McGowan, and each of them, allege as reasons why the affidavit should be quashed that (1) the facts stated in the affidavit do not constitute a public offense; and that (2) the affidavit does not state the offense with sufficient certainty. The first reason above stated is alleged as the reason for arresting the judgments in both cases. The motions to quash and the motion in arrest of judgment in both cases will be considered together.

[2] The indictment against aiders and abettors may lay the fact to have been done by all, or may charge it as having been done by one, and abetted by the rest. 1 Russell on Crimes (8th Amer. Ed.) 687.

[3] Even in offenses in which there could have been only one principal in the first degree, as in rape, a charge against all as principals in the crime is valid, if there be no difference in the punishment between principals in the first and those in the second degree. 1 Russell on Crimes (8th Amer. Ed.) 30. See, also, Lord Audley's Case State Trials, 3, p. 401; East's Crown Law, p. 446.

In Rex v. Burgess, infra, the indictment was against three persons for a rape, charging them all, as principals in the first degree, that they ravished and carnally knew the woman, and the prisoners were all found guilty. The judges held the charge was valid. The accessory may be indicted in the same indictment with the principal, and that is the best and most usual way. Hale's Pleas of the Crown, 623.

In Hale's Pleas of the Crown, 628, note 2, we find the following statement:

“In Rex v. Burgess and others, Chester Springs Assoc. 1813, upon an indictment charging three persons jointly with the commission of a rape, an objection was taken that three persons could not be guilty of the same joint act, but it was overruled upon the ground that the legal construction of the averment was only that they had done such acts as subjected them to be punished as principals in the offense. *** The execution was however respited, probably with a view to enable the learned judges to consult other authorities on the accuracy of their opinions but the prisoners were afterward executed. 5 Ev. Col. Stat. Cl. (2d Ed.) 6, p. 244, note 17, and see 1 Russell C. & M. 801.

A general conviction of a prisoner charged both as principal in a first degree, and as aider and abettor of other men in rape, is valid, on the count charging him as principal. And on such an indictment evidence may be given of several rapes on the same woman at the same time by the prisoner and other men, each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. Rex v. Folkes, R. & M. C. C. 354, and see Reg. v. Gray, 7 C. & P. 164.

An indictment is good which charges that A committed a rape, and that B was present aiding and assisting him in his commission of the felony. Reg. v. Grisham, 1 Car. & M. 187.

In such case, the party aiding may be charged either as he was in law a principal in the first degree, or as he was in fact a principal in the second degree. See Arch. Crim. P. C. (10th Lond. Ed.) 481.”

In Strang v. People, 24 Mich. 1, Joseph Strang and George H. Williamson were charged jointly with the offense of rape. Strang was tried separately and convicted, and appealed to the Supreme Court, and in considering the case on appeal Justice Cooley, speaking for the court, said:

“An objection upon which much reliance was placed was that the indictment was bad in charging two persons jointly as principals in the ravishment; the nature of the offense being such that it was impossible two should join in committing it. And although our statute provides: ‘The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may hereafter be indicted, tried and punished, as principals, as in the case of a misdemeanor’ *** yet it is argued that no person can be charged as having personally joined with another in the commission of an offense which, from its nature, could only be committed by one; and, consequently though one aiding and abetting in a rape might be charged in the same indictment with the principal felon, yet it would be necessary, in charging him as a principal, to set forth the facts of aiding and abetting, which alone would constitute him a principal under the statute. We are not under the necessity of considering this argument, because we have no doubt the information in this case is good without the aid of this statute. All persons aiding and assisting in the commission of a rape are principals in the second degree. As such, a husband may be indicted for the aiding and assisting in the ravishment of his wife; as in case of Lord Audley and Castlehaven, of which an account is given in the third volume of the state trials. And a woman or a boy under the age of fourteen may be so indicted. 1 East P. C. c. 10, § 8; 1 Hale P. C. 628. But it was never necessary to discriminate between principals in the first and those in the second degree in the indictment, provided the punishment was the same, and the guilty act was one which admitted of participation. 1 Wat. Arch. 67; 1 Russ. on Cr. 30; 1 Bish. Cr. L. § 456. And in rape all present and participating in the offense were regarded as ravishers. Thus, it is said in Russell, that ‘the indictment against aiders and abettors may lay the fact to have been done by all, or may charge it as having been done by one and abetted by the rest. Thus, where upon an appeal against several persons for ravishing the appellant's wife, an objection was taken that one only should have been charged as ravishing, and the others as accessories, or that there should have been several appeals, as the ravishing by one would not be the ravishing of the others; it was answered that, if two come to ravish, and one by comfort of the other does the act, both are principals; and the case proceeded. Rex v. Vide and others Fitz. Cor. pl. 86. And in a modern case the form of the indictment in a charge of this kind came under the consideration of the judges. The indictment was against three persons for a rape, charging them all as principals in the first degree, that they ravished and carnally knew the woman; and the prisoners were all found guilty. The judge who tried them doubted whether the charge could be supported, and at his desire the case was mentioned by Heath, J., to the other judges, and all who were present agreed that the charge was valid, though the form was not to be recommended; but they gave no regular opinion because the case was not regularly before them. Rex v. Burgess, Trin T. 1813,’ 1 Russ. on Cr. 687; Id. 30. See, also, Ros. Cr. Ev. 809; 2 Wat. Arch. 161. In Rex v. Gray and Wise, 7 C. & P. 164, Coleridge, J., sustained an indictment which in one count charged Gray as principal in the first degree in a rape, and Wise as present, aiding and abetting, and in another, charged Wise as the principal in the first degree, and Gray as aiding and abetting. In Rex v. Crisham, 1 C. & M. 187, the defendant was indicted alone as having aided and assisted in a rape, in which one McDonough was principal in the first degree. After conviction, it was moved in arrest that the indictment should have charged...