Pomeroy v. State

• Decision Date: 20 December 1883
• Docket Number: 11,151
• Parties: Pomeroy v. The State
• Court: Indiana Supreme Court

94 Ind. 96

Pomeroy v. The State

No. 11,151

Supreme Court of Indiana

December 20, 1883

Petition for a rehearing overruled March 6, 1884.

From the Knox Circuit Court.

The judgment is affirmed, with costs.

J. S Pritchett and H. Burns, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Howk, C. J.

The appellant, Mark Pomeroy, was indicted in the Gibson Circuit Court, at its May term, 1882. The indictment charged "that Mark Pomeroy, on the 8th day of October, A. D. 1881, at and in the county of Gibson and State of Indiana, did then and there unlawfully, feloniously and violently make an assault in and upon one Rebecca R. Reavis, a woman then and there being, and did then and there unlawfully, feloniously, violently, forcibly and against her will, ravish and carnally know her, the said Rebecca R. Reavis, contrary to the form of the statute," etc.

On the appellant's application, the venue of the cause was changed to the court below; and, upon his plea of not guilty, the issues joined were there tried by a jury, and a verdict was returned finding him guilty as charged, and assessing his punishment at imprisonment in the State's prison for the term of ten years. His motion for a new trial having been overruled, and his exception saved to such ruling, the court rendered judgment against him, in accordance with the verdict.

In this court, the only error assigned by the appellant is the overruling of his motion for a new trial. In this motion, the following causes were assigned by appellant for such new trial:

"First. The verdict of the jury is contrary to law;

"Second. The verdict of the jury is contrary to the evidence;

"Third. The verdict of the jury is contrary to the law and the evidence;

"Fourth. Error of law occurring at the trial of the cause, in this, to wit: The court permitted and allowed Rebecca R. Reavis to be examined as a witness on behalf of the State, the said Rebecca R. Reavis being incompetent to testify, for want of mental capacity and imbecility, as a witness; and to the allowing of her being a witness and testifying, the defendant objected, but the court overruled the objection and permitted her to testify, and the defendant at the time excepted."

The record of this cause discloses the following facts: In October, 1881, James Reavis and his wife, Margaret, were living on a farm in the eastern part of Gibson county, in this State. Besides themselves, their family then consisted of their three daughters and two boys they were raising. Their daughter, Rebecca R. Reavis, was then twenty-two years of age, large and stout, "but had been afflicted with epileptic fits since she was a year old, which came oftener and harder the older she got." The natural tendency and effect of these oft-repeated fits of epilepsy were to produce what the appellant himself calls, in his motion for a new trial, her "want of mental capacity and imbecility."

On the 8th day of October, 1881, in the afternoon, the appellant, Mark Pomeroy, in company with one John Patterson, went to the farm-house of James and Margaret Reavis. The appellant was an itinerant doctor, "travelling from place to place," and was an utter stranger to the Reavis family. John Patterson was acquainted with James Reavis, having served in the army with him for a considerable time. Appellant engaged Patterson to drive his team for him over the country; and, on the day named, Patterson introduced the appellant to James Reavis. In a private interview then had with James and Margaret Reavis, the appellant said to them: "I am a physician and have heard about the affliction of your daughter. I have bought property at Oakland City, and am going to build a large hospital on it to treat cases like hers, and have already secured one young lady to treat, and have called to see about treating your daughter." Appellant was then informed by Rebecca's parents that she had been under the treatment of a good many doctors, none of whom seemed to do her any good, and that their son, who was then attending a medical college at Cincinnati, had stated her case to the professors, and they said she could not be cured.

In response to this, appellant said: "Yes; but the physician is now come who will revive your drooping spirits, and cure your daughter; these doctors who treated her, and the college professors, didn't understand her case or know how to treat her, for want of experience; my father was a physician and I was in hospitals, and know all about such cases; I have with me four or five diplomas from medical colleges. I am not practicing my profession for the sake of making money, but only for the sake of suffering humanity; as I am already so rich that I could not spend my fortune in a lifetime unless I recklessly drank and gambled it away."

Appellant then asked to see Rebecca, and said, in the presence of her mother, he would have to examine her, and put his hand up under her clothes for that purpose. She objected to such an examination; but her mother told her that appellant said he could cure her, and that she must let him examine her. After the examination appellant declared that Rebecca had "a terrible womb disease, and was losing her mind." Her parents then employed appellant to cure her; and he and his driver stayed all night at Reavis' house. The next morning appellant took Rebecca into a private room, and, while pretending to make a further examination of her person, succeeded in having sexual intercourse with her. She made no outcry at the time, but after appellant had gone her mother found her crying, and she then complained to her mother that he, appellant, "had committed an outrage upon her." Shortly afterwards the appellant was arrested upon the charge for which he was indicted, tried and convicted in this case.

The bill of exceptions appearing in the record fails to show that the appellant objected or excepted, on any ground, to the competency of Rebecca R. Reavis, a witness for the State. Therefore the only question presented for our decision is this, is...