Pleak v. State, 25422.
| Decision Date | 14 August 1929 |
| Docket Number | No. 25422.,25422. |
| Citation | 201 Ind. 274,167 N.E. 524 |
| Parties | PLEAK v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Vanderburgh Circuit Court; Robert N. Tracewell, Special Judge.
Ezra H. Pleak was convicted of producing an abortion and he appeals. Affirmed.
Carl Pleak, of Hammond, and Benj. F. Zieg, William McClain, and Thos. W. Lindsey, all of Evansville, for appellant.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
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 section 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 on 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 impaneled; in holding that the answer in abatement was not sustained by the evidence; and in refusing to abate the action.
[1] 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 1 to 5, 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 number 1 and instruction number 2; and newly discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial.
[2] 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 otherinstructions, 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. Section 2266, Burns' 1926. And 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 guilty on his testimony alone.” The instruction under consideration, when considered with other instructions in the case, could not have been misunderstood by the jury. The giving of same was not error.
[3] And instruction No. 2 was as follows: ...
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