Polson v. State

• Decision Date: 21 December 1893
• Docket Number: 16,952
• Citation: 35 N.E. 907,137 Ind. 519
• Parties: Polson v. The State
• Court: Indiana Supreme Court

35 N.E. 907

137 Ind. 519

Polson v. The State

No. 16,952

Supreme Court of Indiana

December 21, 1893

Petition for a Rehearing Overruled May 8, 1894.

From the Allen Circuit Court.

Judgment affirmed.

S. M Hench, for appellant.

A. G Smith, Attorney-General, D. L. Cady and F. W. Cady, for State.

OPINION

Coffey, J.

The appellant was prosecuted, in the Allen Circuit Court, upon an affidavit and information consisting of four counts.

The first and second counts charge him with assault upon one Laura Dillon, a female child under the age of twelve years, with the intent to commit the crime of rape, and the third and fourth counts charge him with assault and battery upon the same person, with a like intent.

Upon a trial of the cause, the jury returned the following verdict: "We, the jury, find the defendant guilty of assault and battery with intent to commit the crime of rape, and we further find that he should be confined in the State prison for the period of five years, and fined in the sum of $ 5."

It is contended by the appellant, that this verdict is defective, and should have been set aside by the trial court, because it does not recite that the jury found the appellant guilty as charged in the affidavit and information.

The verdict does show upon its face, that the jury found the appellant guilty of assault and battery with intent to commit the crime of rape, and that is the charge made against him in the affidavit and information. It is true that the recital suggested, which is usual in verdicts, would have removed all doubt, but we do not think we are authorized to assume that the jury found the appellant guilty of a crime with which he was not charged and upon which he was not tried.

We must presume that the jury found the appellant guilty of the assault and battery, for which they were sworn to try him, and the failure to recite that fact in their verdict, if it be a defect, is one which could not injure him. Kennegar v. State, 120 Ind. 176, 21 N.E. 917; Beggs v. State, 122 Ind. 54, 23 N.E. 693.

A verdict is not bad for informality, if the court can understand it. It is to have a reasonable intendment and is to receive a reasonable construction, and must not be avoided except from necessity. Chambers v. Butcher, 82 Ind. 508; Daniels v. McGinnis, Admr., 97 Ind. 549.

At the proper time the appellant moved the court that he be discharged on the ground that the evidence in the cause, on behalf of the State, proved that he was guilty of the crime of rape, and not assault and battery with the intent to commit the crime of rape, as charged in the affidavit and information.

The motion was overruled, and an exception reserved. The appellant also prayed the court, at the proper time, to instruct the jury, if they found from the evidence in the case that he was guilty of the crime of rape, that he could not be convicted of the charge of assault and battery with the intent to commit such crime; but the court refused to so instruct them, and instructed them that assault and battery with intent to commit the crime of rape was included in the crime of rape, and that if they were satisfied from the evidence, beyond a reasonable doubt, that he was guilty of rape they might, under the affidavit and information in the cause, find him guilty of assault and battery with the intent to commit that crime.

It is contended by the appellant that the circuit court erred in these rulings.

The contention of the appellant is against the holding of this court in the case of Hamilton v. State, 36 Ind. 280.

It is true that a misdemeanor may be merged in a felony, but as a general rule one felony is not merged into another; especially is this true where the felonies are of the same grade.

The crime of assault and battery with intent to commit a rape, and the crime of rape, are both felonies belonging to the same class. It is impossible to conceive of a rape without an assault and battery for that purpose.

The crime of rape necessarily includes an assault and battery with the intent to commit a rape. As the appellant has violated the statute making it a felony to commit an assault and battery with the intent to commit a rape, and also the statute making it a felony to commit a rape, the State has the right to elect on which statute it will proceed, and it is not for him to say that he shall not be punished under the statute on which the State has chosen to charge him. Wharton's Am. Cr. Law, sections 565, 566.

In our opinion the court did not err in the rulings above referred to.

During the progress of the trial, many objections to the admissibility of testimony were made by the appellant and overruled by the court, to which exceptions were reserved.

It was not error to permit the injured party to state the reason why she did not complain of her injuries to her mother.

It may be supposed that it would have been natural to make complaints to the mother, but, as this was not done, we can conceive of no good reason why the injured party should not be permitted to explain why this natural course of conduct was not pursued, if any reason for it existed.

Whether the reason was a good one, or otherwise, was a question for the jury.

Some of the questions propounded by the State to Laura Dillon, the injured party, were somewhat leading in form, but it does not appear that any injury resulted to the appellant by reason of that fact.

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