Penn v. State

Decision Date06 December 1957
Docket NumberNo. 29535,29535
Citation146 N.E.2d 240,237 Ind. 374
PartiesJoseph PENN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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.

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.'

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 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 accused of having raped one Mrs. Chappel while she was confined to her bed with a serious illness from which she died. The death occurred on Wednesday. On Tuesday she accused appellant of having committed the offense on Sunday. However, on Monday she spoke of appellant only in terms of great appreciation and, in the presence of other parties, she suffered and requested him 'to do offices for her which might be expected rather of a kindhearted woman than of a man.' There was disposition on the part of physicians to believe that death was hastened by nervous shock from the 'alleged outrage.' Yet the court considered that there was opportunity for the alleged act to have been committed by decedent's demented husband. In that case this court reversed that trial court, stating:

'With this evidence, it is utterly impossible to believe that the crime of rape could have been committed on this woman by this man on the Sunday evening previous.

* * *

* * *

'The life or liberty of a citizen should not be taken on mere conjecture. The law is that either shall be taken only in case the right to do so is established beyond all reasonable doubt.'

In an Oklahoma case it was said: '* * * The law is that the life or liberty of a citizen shall be taken only in case the right to do so is established beyond all reasonable doubt; and while there is no rule of law which forbids a jury to convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law. * * *' Morris v. State, 1913...

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    ... ... 230 Ind. at 254, 102 N.E.2d at 912; Higginson v. State (1957) 237 Ind. 256, 258, 142 N.E.2d 435, 436. Failure to file a praecipe or assignment of errors ... Page 175 ... prevented the court from ... ...
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