Perfect v. State

• Decision Date: 09 October 1923
• Docket Number: No. 24119.,24119.
• Parties: PERFECT v. STATE.
• Court: Indiana Supreme Court

197 Ind. 401

141 N.E. 52

PERFECT

v.STATE.

No. 24119.

Supreme Court of Indiana.

Oct. 9, 1923.

Appeal from Circuit Court, Huntington County; W. H. Eichhorn, Special Judge.

T. Guy Perfect was convicted of rape, and appeals. Affirmed.C. K. Lucas and H. B. Spencer, both of Huntington, for appellant.

U. S. Lesh, Atty. Gen., and Connor D. Ross, First Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J.

The appellant was convicted in the Huntington circuit court of the crime of rape upon Bernice Allen, a female child under the age of 16 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 the 14th day of May, 1921, there was pending in the Huntington circuit court a cause entitled State of Indiana v. 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 16 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 Fifty-Sixth 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 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 16 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 appearance from day to day thereafter, and at each succeeding term of such court, being a continuing bond. On May 24, 1921, Charles R. Haller, prosecuting attorney, filed his showing that he is disqualified as prosecutor in this cause, which showing reads as follows:

“Comes now Charles R. Haller, prosecuting attorney of the Fifty-Sixth judicial circuit of Indiana, and shows to the court that, by reason of being the personal attorney of T. Guy Perfect, by reason of his business and professional relations with said T. Guy Perfect, he is disqualified from appearing as prosecuting attorney in the above-entitled cause, for the reason that Bernice Allen is the prosecuting witness in said cause, and he therefore challenges himself, and asks to be relieved from service of prosecuting attorney in this cause.

Charles R. Haller.”

The court then appointed Attorneys Otto H. Krieg and Knowlton H. Kelsey as special prosecutors to have full charge of the prosecution of this cause, and said Krieg and Kelsey qualified as such special prosecuting attorneys. One Milo Fieghtner was also designated as special counsel for the state.

On May 28, 1921, the appellant, T. Guy Perfect, filed his affidavit for change of judge, which affidavit was sustained, and such proceedings were had that Hon. W. H. Eichhorn was appointed as special judge to try the case, and he accepted such appointment and qualified as special judge on June 16, 1921. The appellant filed a plea in abatement to the indictment, to which plea the state of Indiana filed its answer in general denial. The trial of the plea in abatement was held on June 21, 1921, and the court found that the plea in abatement should be overruled, and judgment was rendered to that effect. The appellant then entered his plea of ‘Not guilty.’ The cause was set for trial September 12, 1921. A jury was impaneled, and the trial begun, and continued from day to day until completed, resulting in a verdict of guilty.

[1] Under the facts shown by the record there was no error in removing Charles R. Haller, prosecuting attorney, and appointing special prosecutors in the case. See section 9407, Burns' 1914; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370;State ex rel. v. Ellis, 184 Ind. 307, 112 N. E. 98, and cases there cited; Choen v. State, 85 Ind. 209; Tull v. State, 90 Ind. 238;State v. Bartlett, 105 Me. 212, 74 Atl. 18, 24 L. R. A. (N. S.) 564, 134 Am. St. Rep. 542.

The appellant says that the verdict of the jury is contrary to law, and is not sustained by sufficient evidence. It is not necessary to set out the evidence, but an examination of the record shows that every material allegation of the indictment is supported by ample evidence.

[2][3] In points 4 and 5 of appellant's brief he claims that in the trial of the case he was not permitted to cross-examine the prosecuting witness to the extent to which he was entitled under the law, but he does not point out any ruling of the court which shows that such right was denied. It does not appear what questions were asked and what objections were interposed to them, and does not disclose what the ruling of the court was, and there is no reference to the record where such questions may be found. However, it may be stated that the rule is that the limit of cross-examination of any witness is within the sound discretion of the trial court, and, there being no specific showing of error or abuse of that discretion, this court will not presume error. See Eacock v. State, 169 Ind. 488, 82 N. E. 1039;Wheeler v. State, 188 Ind. 228, 122 N. E. 769; rule 22, Supreme Court (55 N. E. v).

In Eacock v. State, supra, this court said:

“It is a settled rule in this state that it is not error for the trial court to limit questions on the cross-examination of a witness to the subject covered or entered upon in the examination in chief.”

The record discloses that the appellant was allowed great latitude in the examination of the prosecuting witness.

[4] In point 6 of appellant's brief he says that the testimony of Lillian Lucas, Bernice Allen, Philena Palmer, and Hattie Knight, in reference to a conversation held by such witnesses and a Mrs. Curry at Clermont, was held in the absence of appellant, and the same was hearsay, and harmful to the appellant, and was wrongfully admitted by the court. The appellant fails to state where such improper evidence can be found in the record, or what objection was made to the admission of the same, and whether any exceptions were reserved to such admission.

[5][6] In points 7 and 8 of appellant's brief he complains of the conduct of the state's attorney in asking questions on cross-examination of appellant while he was on the stand as a witness in his own behalf. The appellant claims that the questions were incompetent, and that the intention of the state's attorney in propounding the questions was to take an unfair advantage of appellant before the jury by insinuations of facts which he knew he could not legally bring to the attention of the jury, which he believed would prejudice the appellant on his trial, and which did prejudice appellant on the trial and prevent him having a fair trial. So far as the competency of the questions asked him on cross-examination is concerned, there is nothing in appellant's contention that they were incompetent. The defendant in becoming a witness subjected himself to the same treatment as any other witness, and it has been held that any fact tending to impair the credibility of the witness by showing his interest,...