Perfect v. State
| Citation | 141 N.E. 52,197 Ind. 401 |
| Decision Date | 09 October 1923 |
| Docket Number | 24,119 |
| Parties | Perfect v. State of Indiana |
| Court | Supreme Court of Indiana |
Rehearing Denied March 17, 1926.
1. CRIMINAL LAW.---Court may appoint special prosecutor for case when prosecuting attorney shows that he is disqualified by having been attorney for accused for many years and still representing him in pending cases.---Where the prosecuting attorney has shown himself to be disqualified by reason of having for years been the attorney of an accused and still has matters pending in court in which the accused is interested, the court may properly remove him from the case and appoint a special prosecutor therein. p. 406.
2. WITNESSES.---Extent of cross-examination of witness is within discretion of trial court.---The extent of the cross-examination of a witness is within the sound discretion of the trial court. p. 407.
3. CRIMINAL LAW.---Appellate tribunal will not presume error but appellant must specifically point it out in his brief.---Appellate tribunal will not presume error in the trial of a criminal case, but appellant must specifically point it out in his brief. p. 407.
4. CRIMINAL LAW.---Appellant objecting to admission of evidence must show in his brief where evidence may be found in record the objection made to its admission and whether exception was reserved.---An appellant objecting on appeal to the admission of evidence should state in his brief where the alleged improper evidence can be found in the record, the objection made to its admission, and whether an exception was reserved to the ruling admitting it. p. 407.
5. CRIMINAL LAW.---Defendant subject to cross-examination same as any other witness.---A defendant who becomes a witness for himself is subject to cross-examination the same as any other witness. p. 407.
6 WITNESSES.---Any fact tending to impair credibility of a witness may be shown on cross-examination; extent of examination being in court's discretion.---Any fact tending to impair the credibility of a witness by showing his interest, motives, or that he is depraved in character, may be shown on cross-examination; the extent of such examination being in the court's sound discretion. p. 407.
7. CRIMINAL LAW.---Cross-examination of defendant was harmless where all questions were answered favorable to himself.---Where questions asked defendant on his cross-examination were all answered favorable to himself, any error in asking incompetent question was harmless. p. 408.
8. CRIMINAL LAW.---No question is presented as to misconduct of prosecuting attorney where such misconduct is not shown by bill of exceptions, and no objection or exception is shown.---No question is presented on appeal as to the misconduct of the prosecuting attorney where such misconduct is not shown by a bill of exceptions, and no objection or exception is shown. p. 409.
9. CRIMINAL LAW.---Misconduct of audience in court-room which prevented defendant from having fair and impartial trial can only be shown by bill of exceptions.---Misconduct of the audience in the court-room which prevented the defendant from having a fair and impartial trial can only be shown by a bill of exceptions. p. 409.
10. CRIMINAL LAW.---Affidavit in support of motion for new trial can only be brought into the record by bill of exceptions.---An affidavit in support of a motion for a new trial can only be brought into the record by a bill of exceptions. p. 409.
11. CRIMINAL LAW.---In prosecution for rape, an instruction that state not required to prove commission of offense on exact date charged, but that proof of commission of offense within five years prior to return of indictment, was proper.---In a prosecution for rape, an instruction that it is not necessary for the state to prove that the offense was committed on the exact date charged in the indictment, but that it would be sufficient to show that the offense was committed within five years prior to the return of the indictment, was not erroneous. p. 409.
12. CRIMINAL LAW.---If evidence was of such nature that defendant thought more specific instruction should be given, it was his duty to prepare and tender such instruction.---If the evidence was of such a nature that the defendant believed a more specific instruction should be given, it was his duty to prepare an instruction covering the point insisted upon and request that it be given. p. 409.
13. CRIMINAL LAW.---Evidence of defendant's efforts to manufacture or suppress evidence is admissible against him.---Evidence that the defendant had made efforts to manufacture or suppress evidence is admissible as a circumstance against him. p. 410.
14. CRIMINAL LAW.---On prima facie showing that defendant was privy thereto, evidence that third persons procured or attempted to procure absence of witnesses is admissible.---A proper foundation therefor having been first laid by proof sufficient, in the opinion of the judge, to establish a conspiracy between the defendant and others to procure the absence of witnesses, evidence that such persons procured or attempted to procure the absence of witnesses is admissible against the defendant. p. 410.
15. CRIMINAL LAW.---Instruction as to jury's consideration of evidence that defendant, or others at his instance, had attempted to suppress evidence or to intimidate or coerce witnesses, held not to invade province of jury.---Instruction as to the jury's consideration of evidence that defendant, or others acting at his instance, had made efforts to suppress evidence or to intimidate or coerce witnesses, held proper and did not invade province of the jury. p. 410.
16. CRIMINAL LAW.---Request for oral argument made after cause had been fully briefed and distributed was too late under Supreme Court Rule 26.---A request for oral argument made after a cause had been fully briefed and distributed was too late under Supreme Court Rule 26. p. 412.
From Huntington Circuit Court; W. H. Eichhorn, Special Judge.
T. Guy Perfect was convicted of rape on a girl under age of consent, and he appeals.
Affirmed.
C. K. Lucas, H. B. Spencer and Ralston, Gates, Lairy, VanNuys & Barnard, for appellant.
U. S. Lesh, Attorney-General and Connor D. Ross, Deputy Attorney-General, for the State.
The appellant was convicted in the Huntington Circuit Court of the crime of rape upon Bernice Allen, a female child under the age of sixteen years. A motion for a new trial was filed and overruled. Judgment was entered upon the verdict and from such judgment appellant appeals. The errors assigned and not waived are: The court erred in the removal of Charles R. Haller, as prosecuting attorney in the case, and the court erred in overruling appellant's motion for a new trial.
It appears from the record that on May 14, 1921, there was pending in the Huntington Circuit Court, a cause entitled: State of Indiana vs. T. Guy Perfect, No. 2948. That said cause was commenced by the filing of an affidavit against the appellant, T. Guy Perfect, in which he was charged with the crime of rape upon one Bernice Allen, a female child under sixteen years of age. That the judge of the Huntington Circuit Court, filed a statement in writing stating reasons why Charles R. Haller, the prosecuting attorney of the Huntington Circuit Court was an improper person to conduct the proceedings in the trial of said cause on behalf of the State of Indiana. The said Charles R. Haller, then filed his own challenge, which reads as follows: "Charles R. Haller, prosecuting attorney of the 56th Judicial circuit of Indiana, shows to the court that for years past he has been the attorney of T. Guy Perfect, defendant in the above entitled cause and now has matters pending in this court and other courts wherein said T. Guy Perfect is interested. For the reasons above stated he feels he is disqualified and for those reasons only he feels he is disqualified to properly represent the State of Indiana in the prosecution of the said defendant; for that reason he challenges himself and asks the court to be relieved from any further duties in the case. The prosecutor further shows to the court that he also asks to be relieved from any connection whatever from any further duty appearing before the grand jury or investigation of any matters pertaining to Bernice Allen. However, should any investigation before the grand jury of Huntington county result in the indictment of any person or persons against whom this prosecuting attorney is not disqualified from acting and appearing, he does not refrain from or ask to be excused from any of his official duties in connection with such prosecution.
Charles R. Haller."
The court then appointed Otto H. Krieg and Knowlton H. Kelsey, as special prosecutors in said cause. The said Otto H. Krieg and Knowlton H. Kelsey were then sworn and qualified as special prosecutors for such purpose. The said special prosecutors then requested the court to call a special grand jury to investigate the alleged facts and rumors concerning the relations of appellant with said Bernice Allen. The request was sustained by the court and a grand jury ordered. The grand jury was duly selected impaneled, sworn and instructed and entered upon the investigation before indicated. The grand jury, on May 20, 1921, returned in open court an indictment against T. Guy Perfect for rape upon the said Bernice Allen, a female child under sixteen years of age. On May 20, 1921, a warrant was issued for the arrest of the appellant, T. Guy Perfect, on the indictment returned against him. The warrant was served and appellant brought into court where he gave a recognizance bond for his appearance at the first day of the next term of the court. Such bond requiring his...
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