Penn v. State, No. 29535

Docket NºNo. 29535
Citation146 N.E.2d 240, 237 Ind. 374
Case DateDecember 06, 1957
CourtSupreme Court of Indiana

Page 240

146 N.E.2d 240
237 Ind. 374
Joseph PENN, Appellant,
v.
STATE of Indiana, Appellee.
No. 29535.
Supreme Court of Indiana.
Dec. 6, 1957.

[237 Ind. 376] Robert H. Duffy, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

ACHOR, Judge.

Affidavit was filed by John Peters, father of Hilda Marie Peters, charging appellant with statutory rape on Hilda Marie Peters on or about February 1, 1956, in Vigo County, Indiana. To said affidavit appellant entered a plea of not guilty. Trial was had and appellant was found guilty, as charged, and sentenced to the Indiana State Prison for two to 21 years. Thereafter the appellant filed a motion for a new trial, claiming (1) that the finding of the court was not sustained by sufficient evidence, and (2) finding of the court was contrary to law. The court overruled appellant's motion for a new trial. The overruling of said motion is the only error here assigned.

Under the issues thus drawn the sole question we are required to determine is whether the evidence is sufficient to sustain the finding and judgment.

Page 241

The appellant was convicted upon the uncorroborated evidence of the prosecutrix, a girl 16 years old. Other state witnesses were he parents, whose testimony contributed nothing to the state's case.

There is here the fact of the birth of a child born out of wedlock, but this did not furnish the necessary corroboration to establish the guilt of this appellant. It established the fact of intercourse with someone, but not with this appellant. The prosecutrix had other 'boy friends,' one of whom was more or less her 'steady.'

[237 Ind. 377] The testimony of the prosecutrix in this case is unique to say the least. Her uncorroborated story regarding sexual advances made by appellant prior to October, 1955 conformed to the factual opportunity for such relationship. During this time Mrs. Penn (appellant's wife) was working and appellant and prosecutrix were frequently together.

However Mrs. Penn was not employed after September, 1955 and thereafter there was no opportunity for such relationship between appellant and prosecutrix in the absence of Mrs. Penn. Thereafter, according to prosecutrix, she and Mrs. Penn shared the same bed with appellant. This story regarding her sexual relationship with appellant, during and after October, 1955, is so improbable as to challenge the credibility of her entire testimony.

The testimony of prosecutrix regarding her relationship with Mr. and Mrs. Penn during and after October, 1955 is that Mrs. Penn would call her parents and ask for her to baby sit while Mr. and Mrs. Penn would go out for the evening and that on the occasions when intercourse occurred she would stay over night to be with the children in the morning when Mr. and Mrs. Penn would leave before the children were up. She testified that when Mr. and Mrs. Penn would return from the evening out, appellant would usually go to bed, but that prosecutrix and Mrs. Penn would usually stay up late--popping corn, talking and watching television. They were friends. That, on prior occasions, prosecutrix slept on the davenport in the living room, but that beginning in October she slept in appellant's bed with appellant and his wife. Prosecutrix testified that on these occasions the accused would there have intercourse first with one and then the other, with knowledge of both. Prosecutrix fixes [237 Ind. 378] the time of the offense charged as being the 'last' she had 'relations' with appellant. This, she said, was the lat part of January or the first of February, 1956, the day appellant came home from the hospital after undergoing a hemorrhoid operation. Both appellant and his wife flatly denied the entire story of any sexual relations between prosecutrix and appellant. Prosecutrix stated that she and Mrs. Penn never talked about such relationships or about the subject of sex.

This court was confronted with a situation involving the same principles of law in the case of Hutchins v. State, 1894, 140 Ind. 78, 86, 88, 39 N.E 243, 245. In that case appellant was...

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61 practice notes
  • Hogan v. Review Bd. of Indiana Dept. of Employment and Training Services, Q-1
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1994
    ...of errors Page 175 prevented the court from "obtaining jurisdiction." Meier v. Social Sec. Admin., supra n. 2, 237 Ind. at 422, 146 N.E.2d at 240. The jurisdictional theory was bolstered by our court's promulgation of Ind. Appellate Rule 2(A) which states that if a praecipe is not filed wit......
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...358; Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639; Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240. If the evidence had not otherwise been insufficient in this case, I feel this Court would have been compelled to scrutinize ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...516; Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240; and, Zinn v. State (1981), Ind.App., 424 N.E.2d 1058. In Penn, we reversed a conviction where the uncorroborated testimony of......
  • Phillips v. Mirac, Inc., No. 121831 (MI 10/14/2004), No. 121831.
    • United States
    • Supreme Court of Michigan
    • October 14, 2004
    ...action, such as statutory `caps' on the recoverable amount of damages." The Supreme Court of Indiana, in Johnson v St Vincent Hosp, Inc, 237 Ind 374, 396; 404 NE2d 585 (1980), stated, concerning a similar statutory cap on damages, "It is not a presumption which prevents recovery of more tha......
  • Request a trial to view additional results
61 cases
  • Hogan v. Review Bd. of Indiana Dept. of Employment and Training Services, Q-1
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1994
    ...of errors Page 175 prevented the court from "obtaining jurisdiction." Meier v. Social Sec. Admin., supra n. 2, 237 Ind. at 422, 146 N.E.2d at 240. The jurisdictional theory was bolstered by our court's promulgation of Ind. Appellate Rule 2(A) which states that if a praecipe is not filed wit......
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...358; Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639; Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240. If the evidence had not otherwise been insufficient in this case, I feel this Court would have been compelled to scrutinize ......
  • Spranger v. State, No. 684S216
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1986
    ...516; Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240; and, Zinn v. State (1981), Ind.App., 424 N.E.2d 1058. In Penn, we reversed a conviction where the uncorroborated testimony of......
  • Phillips v. Mirac, Inc., No. 121831 (MI 10/14/2004), No. 121831.
    • United States
    • Supreme Court of Michigan
    • October 14, 2004
    ...action, such as statutory `caps' on the recoverable amount of damages." The Supreme Court of Indiana, in Johnson v St Vincent Hosp, Inc, 237 Ind 374, 396; 404 NE2d 585 (1980), stated, concerning a similar statutory cap on damages, "It is not a presumption which prevents recovery of more tha......
  • Request a trial to view additional results

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