Pleak v. State
| Decision Date | 14 August 1929 |
| Docket Number | 25,422 |
| Parties | Pleak v. State of Indiana |
| Court | Indiana Supreme Court |
1. APPEAL---Plea in Abatement---Review of Rulings in Trial of Issues Raised Thereby---Presentation on Appeal.---Alleged errors occurring on the trial of the issues raised by a plea in abatement can only be presented on appeal by assigning the same as grounds for a new trial. p. 276.
2. NEW TRIAL---Rulings Connected with Trial---Review by Trial Court Essential.---Rulings connected with the trial or made during its progress must be brought before the trial court for review before presenting them on appeal. p. 276.
3. CRIMINAL LAW---Accomplices Competent Witnesses---Conviction on Uncorroborated Testimony of Accomplice.---Accomplices are competent witnesses when they consent to testify (2266 Burns 1926), and conviction may be had on the uncorroborated testimony of an accomplice. p. 277.
4. CRIMINAL LAW---Procuring Abortion---Instruction Held Harmless.---In a prosecution of a physician for producing an abortion (2425 Burns 1926), an instruction held not harmful as giving undue and unwarranted prominence to the fact that he was a physician. p. 278.
5. NEW TRIAL---Newly Discovered Evidence---Character of Evidence---Different Result Probable.---To secure a new trial on the ground of newly discovered evidence, it must appear that the new evidence is of such a character as to raise a reasonable presumption that the result would be different on another trial. p. 279.
6. CRIMINAL LAW---New Trial---Newly Discovered Evidence---Denial Not Error.---In a prosecution against a physician for procuring an abortion, there was no error in refusing to grant a new trial where the defendant testified that he refused to perform the abortion and the only new evidence offered was that of a woman corroborating his testimony. p 279.
From Vanderburgh Circuit Court; Robert N. Tracewell, Special Judge.
Ezra H Pleak was convicted of procuring an abortion, and he appealed.
Affirmed.
Carl Pleak, Benjamin F. Zieg, William McClain and Thomas W Lindsey, for appellant.
Arthur L. Gilliom and James M. Ogden, Attorney-Generals, Harry L. Gause and E. Burke Walker, Deputy Attorney-Generals, for the State.
OPINION
In this criminal action, the appellant was charged by indictment, tried by jury and convicted of producing an abortion on one Clara Coomes. Judgment of fine and imprisonment was rendered on the verdict of the jury. The crime of abortion is defined in § 2435 Burns 1926.
The appellant has assigned seven causes for a reversal of the judgment. Five of these causes relate to the ruling on a plea in abatement, which alleged that the grand jury which indicted the appellant was not a legal grand jury. The sixth and seventh causes question the overruling of motions to quash the indictment and for a new trial.
To the verified answer in abatement, a reply denying each and every material allegation therein was filed. There was a trial on the plea in abatement and the evidence thereon is in the record. On this part of the case, the appellant claims that the circuit court erred as follows: In its findings against the appellant on the issues joined in his answer in abatement and reply in denial thereto; in holding that the court did not err in excusing for grand jury service for the December Term, 1926, a named prospective grand juror; in holding that the grand jury was legally empaneled; in holding that the answer in abatement was not sustained by the evidence; and in refusing to abate the action.
Alleged errors, occurring on the trial of issues formed on a plea in abatement must be saved by assigning the same as causes for a new trial. Williams v. State (1907), 169 Ind. 384, 82 N.E. 790. This was not done. The practical doctrine is that rulings connected with the trial or made during its progress must be brought before the trial court for review. Elliott, Appellate Procedure § 828.
Assignments of error one to five inclusive do not present anything for consideration by this court.
The sixth assignment of error is that the court erred in overruling the motion to quash the indictment. During the oral argument of this cause in this court, counsel for appellant stated that this assignment of error was not well taken.
In the motion for a new trial, twelve reasons are given for same, but only three of them are now relied upon and presented by the appellant. These are that the court erred in giving to the jury, at the request of the State, instruction No. 1 and instruction No. 2; and newly discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial.
Said instruction No. 1 was as follows: "I instruct you that the evidence of an accomplice in the commission of a crime should be carefully considered and scrutinized by you; but if after such consideration you believe it, under all the facts and circumstances in the case, and from it you have no reasonable doubt of the guilt of the accused, you may base your verdict upon the same even though it be uncorroborated." The term "accomplice in crime" is defined in defendant's instruction No. 10 given by the court. In other instructions, the jury was clearly informed as to what constituted reasonable doubt. The reference to "facts and circumstances in the case" meant facts and circumstances in the evidence. In this jurisdiction, accomplices are competent witnesses when they consent to testify. § 2266 Burns 1926. Conviction may be had on the uncorroborated testimony of an accomplice. Schuster v. State (1912), 178 Ind. 320, 99 N.E. 422; Parsons v. State (1921), 191 Ind. 194, 131 N.E. 381; Vorhees v. State (1922), 192 Ind. 15, 134 N.E. 855; Adams v. State (1923), 194 Ind. 512, 141 N.E. 460. In the last case cited, an instruction approved by this court contained the following statement: "It is the duty of the court and jury to carefully scrutinize the testimony of an accomplice; and, if his testimony shall be found sufficiently satisfactory to the jury, they may return a verdict of...
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