Pearman v. State
| Decision Date | 03 November 1986 |
| Docket Number | No. 83A01-8605-CR-122,83A01-8605-CR-122 |
| Citation | 499 N.E.2d 277 |
| Parties | Paul PEARMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Woodrow S. Nasser, Terre Haute, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Paul Pearman appeals his conviction by jury trial of two counts of incest involving acts of sexual intercourse with his step-daughter, G.C. We affirm.
Pearman was charged with two separate acts of sexual intercourse with G.C., on July 5, 1983, and January 11, 1984. G.C. testified as to these acts of intercourse and that Pearman was married to her mother. In addition, a deed wherein Pearman and G.C.'s mother, Barbara Pearman, were grantors which recited they were husband and wife, and a mortgage wherein Pearman and Barbara were mortgagors which contained a like recitation, were admitted into evidence. Further, testimony was received from two police officers that Pearman stated to them he was married to Barbara, G.C.'s mother.
Pearman raises the following issues which we have restated:
1. Did the trial court err in admitting certain evidence tending to prove Pearman was married to the victim's mother?
2. Did the trial court err in refusing certain instructions tendered by Pearman?
3. Did the trial court err in denying Pearman's motion for a directed verdict?
4. Was the evidence sufficient to sustain the conviction.
The Indiana statute defining the crime of incest, a class D felony, provides insofar as relevant to this case, that a person eighteen years of age or older who engages in sexual intercourse with another person knowing that other person is his stepchild is guilty of incest. Ind. Code Sec. 35-46-1-3(a). Thus, to sustain the convictions in this case, it was necessary for the state to prove beyond a reasonable doubt that at the time of the acts of intercourse alleged, Pearman was married to G.C.'s mother, 41 Am.Jur.2d, Incest, Sec. 8 (1968) and that Pearman knew G.C. was his step-daughter. No issue is raised as to Pearman's knowledge that G.C. was Barbara's daughter. Rather, he attacks only the sufficiency of the evidence to prove his marriage to Barbara, and the admissibility of evidence offered by the state on that issue. Pearman contends first that the only proper and admissible evidence of the marriage is the marriage certificate. He is in error.
Facts in criminal prosecutions can be proved by circumstantial evidence as well as by direct evidence. Brunes v. State (1985), Ind.App., 475 N.E.2d 356. It is not necessary to produce the marriage certificate to prove a valid marriage. 52 Am.Jur.2d, Marriage, Sec. 151 (1975). The fact of marriage can be proven by the declaration of a party to the marriage. 52 Am.Jur.2d, Marriage, Sec. 153 (1975). In fact, our supreme court has held in bigamy prosecutions, the admissions of the defendant are competent to prove his prior marriage. Squire v. State (1874), 46 Ind. 459; State v. Seals (1861), 16 Ind. 352. Thus, the statements of Pearman to the officers that he was married to Barbara were competent proof of their marriage. Id. Pearman, however, contends such declarations were not admissible because the state had not proved corpus delicti by independent evidence, asserting the well established rule that corpus delicti may not be proved solely by the extra-judicial admission of the accused.
Our supreme court recently dealt with the corpus delicti issue in Moore v. State (1986), 498 N.E.2d 1. There, Justice Pivarnik, writing for the supreme court, stated:
In our view, there was ample evidence to establish corpus delicti. G.C. testified to the acts of intercourse and that Pearman was the husband of her mother. Further, the deed and mortgage wherein Pearman and Barbara were grantors and mortgagors, respectively, recited that they were husband and wife. Such evidence is sufficient proof of corpus delicti to permit admission of Pearman's statements admitting his marriage to Barbara.
Pearman challenges the admissibility of the deed and mortgage as evidence of marriage, claiming such were attempts to prove marriage collaterally before corpus delicti was established. This argument is unavailing. The requirement of independent proof of corpus delicti pertains only to the admission into evidence of the extra-judicial admissions of the accused. It is not relevant to the question of the admission of these documents.
Although no Indiana case directly bearing on this issue has been found, cases from other jurisdictions have upheld the use of deeds reciting the grantors to be husband and wife as proof of marriage, In re Lamond's Estate (1947), 68 N.Y.S.2d 690, aff'd 273 App.Div. 751, 75 N.Y.S.2d 509, and a recital that the grantor was a bachelor as proof of no marriage. Bishop v. Brittain Inv. Co. (1910), 229 Mo. 699, 129 S.W. 668. It is true these cases involved common-law marriages which no longer are recognized in this state, but we believe such instruments constitute evidence of marriage and, at the least, were sufficient evidence of corpus delicti to allow admission of...
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