Peachee v. State
| Decision Date | 23 October 1939 |
| Docket Number | 27238. |
| Citation | 22 N.E.2d 979,216 Ind. 42 |
| Parties | PEACHEE v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Daviess Circuit Court; Frank E Gilkinson, Judge.
Seal & Seal and Carl L. Chattin, all of Washington, for appellant.
O S. Jackson, Atty. Gen., and Walter G. Lewis, Deputy Atty Gen., for the State.
This is an appeal from a conviction of appellant of assault and battery with intent to rape. The appellant assigns error (1) in overruling appellant's motion to dismiss the action and (2) in overruling appellant's motion for a new trial.
At the close of the state's evidence the appellant moved the court to dismiss the action. Liberally construed, the motion to dismiss could be considered a motion for a directed verdict. By proceeding to present his evidence, however, the appellant waived any possible error of the court in overruling the motion. Bowen v. State, 1920, 189 Ind. 644, 128 N.E. 926. The appellant has also waived our consideration of this question by failing to include any discussion thereof in his brief. Rule 18 of the Supreme Court; Slaughter v. State, 1936, 209 Ind. 658, 199 N.E. 244.
Even if the appellant had not waived any possible error based on the action of the court in overruling such motion such error could only be saved by including it as a cause for a new trial; it is not a proper separate assignment. § 9-1903, Burns' 1933, § 2310 Baldwin's, 1934, Bowen v. State, supra.
The only two grounds for a new trial properly presented questions (a) the sufficiency of the evidence to sustain the verdict and (b) the admissibility of certain evidence.
The uncontradicted evidence shows that the appellant was guilty of assault and battery upon the prosecuting witness. The appellant insists, however, that there was no evidence on which the jury could properly find him guilty of the felonious intent charged in the affidavit.
The state is not required to make proof of felonious intent, as a fact, by direct and positive evidence. The state is only required to produce such evidence as will satisfy the jury beyond a reasonable doubt that the assault and battery was committed by the defendant with the felonious intent charged in the affidavit. Padgett v. State, 1885, 103 Ind. 550, 3 N.E. 377.
In considering whether the verdict of the jury is sustained by sufficient evidence we can consider only the evidence tending to support the verdict, with the reasonable inferences which may properly be drawn therefrom, and cannot give credence to any evidence contradictory thereto. Schaffer v. State, 1930, 202 Ind. 318, 327, 173 N.E. 229.
The evidence in the instant case discloses that the appellant went to the home of the prosecuting witness between one and two o'clock in the morning. He knocked on the door until he aroused the sister of the prosecuting witness, who in turn awakened the prosecuting witness. The appellant told them that their niece wanted the prosecuting witness down at the Telephone Exchange where she (the niece) worked and lived. He told them he thought it was about the niece's baby. All of his story, he admitted, was false and was told for the purpose of getting the prosecuting witness out of her home and by herself. She told the defendant to leave but he waited until she was dressed and they then left her house together. Before they had gone very far the appellant started to put both his arms around her. She told him to quit but he 'kept getting worse.' He grabbed her and tried to stop her but she broke away from him. He placed his body against her as they walked along. He again caught hold of her. She fought loose from him and began to call for help and run. Again he caught up with her, grabbed hold of her clothing, put his arms around her and pulled her body up to his own. These attacks were repeated three or four times between her home and the Exchange Building. After they left her house he talked so low she could not understand anything he said. When they were in front of the school house he tried to put her up against the wall which is around the school yard and also tried to push her up against trees. Each time the appellant grabbed her the prosecuting witness pushed against his face and chest to break loose and would then run and call for help.
Two witnesses living between the home of the prosecuting witness and the Exchange building heard screams and some one passing along the street at about the time these attacks were taking place.
When the prosecuting witness arrived at the Exchange Building she...
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