Ritchie v. State

• Decision Date: 17 April 1963
• Docket Number: No. 30138,30138
• Parties: Benjamin Franklin RITCHIE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 575

189 N.E.2d 575

243 Ind. 614

Benjamin Franklin RITCHIE, Appellant, v. STATE of Indiana, Appellee.

No. 30138.

Supreme Court of Indiana.

April 17, 1963.

Richard C. Ver Wiebe, Fort Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., Indiana, for appellee.

ARTERBURN, Judge.

The appellant was charged by affidavit in one court with rape upon the Christine Dees, a female child of the age of 9 years. The offense is alleged to have taken place on the 28th day of July, 1960. The trial was by the court without a jury, and the defendant was found guilty and sentenced to life imprisonment.

The sole assignment of error is the overruling of a motion for a new trial, based upon the items that the finding of the court is contrary to law and is not sustained by sufficient evidence. The argument resolves itself into the contention that there is no substantial evidence of the penetration under the crime of rape.

The evidentiary problem raised in cases of this type has always been one of considerable difficulty for courts when it involves a victim of tender age who, either because of lack of vocabulary or lack of knowledge of the facts necessary for rape or sexual intercourse, is unable adequately to present evidence upon such an issue. The delicacies of the occasion and the sensitivities of the witnesses, which result in uncertain and ambiguous language describing exactly what took place, however, should not outweigh or obscure the protection which the law gives a defendant in requiring that he be proved guilty beyond a reasonable doubt and by substantial evidence.

We need not recount in detail the distasteful evidence in this case. Suffice it to say that the testimony is uncontradicted that immediately after the alleged attack the clothing and body of the alleged victim had no marks corroborating an act of rape or sexual intercourse. A physician testified that he found some irritation of the prosecutrix's labia but that the hymen was not ruptured. There was no blood or sperm about the girl's body. The appellant admitted in his statements that he had fondled the little girl with his fingers, which the girl corroborates in her statements and which would account for certain irritations about the female organs, according to the physician. We do not intend to thereby create an inference that the hymen must be ruptured to constitute rape, but rather that such a fact may be considered with the prosecutrix's testimony that she 'didn't know' what she meant in referring to certain testimony given by her in chief on the element of penetration. Such is the evidence on the issue of penetration. We cannot say that such testimony is clear and substantial upon such an essential element of the crime.

In Riggs v. State (1956), 235 Ind. 499, 503, 135 N.E.2d 247, 249, this court said:

'Although we are not unmindful that by reason of the nature of the details there is a natural reticence for a child of such age to speak out in detail, still the delicacies of the situation should not be permitted to outweigh the fact that a man's liberty and reputable life is at stake. The consequential embarrassment is a small price to pay in return for a showing of the witness's understanding of the details upon which such conclusion may be properly or improperly based. A child of 12 is not competent to give her conclusion of 'sexual intercourse' without showing her understanding of details supporting such conclusion, while at the same time a more mature person with more knowledge of such matters might be qualified. Flinn v. State, 1919, 188 Ind. 531, 124 N.E. 875.'

We feel this statement of principle is applicable because the testimony here on the issue of penetration, which is a necessary element in rape, is uncertain and unsubstantial.

Appellant's counsel, in argument, concedes that there was sufficient evidence to convict the appellant of assault and battery with intent but not the completed crime of rape. We must, likewise, reach the same conclusion.

We have the authority where, under the evidence as found by the court or jury, the accused should have been adjudged guilty of a lesser included offense to modify the judgment by reducing the conviction to that of the lesser included offense of assault and battery with intent, (sex) (Burns' § 10-403). A new trial may thus be avoided:

Burns' § 9-2321 provides:

'Power of court on appeal--Remand to trial court.--On appeal, the court may reverse, modify or affirm the judgment appealed from, and may, if necessary or proper, order a new trial. In any case, the cause must be at once remanded to the trial court, with proper instructions, and the opinion of the court shall also be immediately certified to the trial court.'

Although the question here is one of first impression in this state, we have, heretofore, on appeal corrected an erroneous sentence without ordering a new trial. Supreme Court Rule 2-40B; Mann v. State (1933), 205 Ind. 491, 186 N.E. 283, 187 N.E. 343; Marks v. State (1942), 220 Ind. 9, 40 N.E.2d 108; Shoemaker v. Dowd, Warden (1953), 232 Ind. 602, 115 N.E.2d 443; Kennedy v. State (1878), 62 Ind. 136.

In other jurisdictions, under similar statutory language, where the question has arisen as to the power of the court to modify the judgment of conviction so as to reduce it to a lesser included offense, the decisions show little, if any, doubt as to the power of the court.

5 Am.Jur.2d, Appeal and Error, § 938, p. 365 states:

'Under some statutes the reviewing court, in a proper case, may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged, or of a lesser crime included therein, where the errors do not affect the conviction of the lesser offense.'

Without reference to any statutory authority, it is stated in 24B C.J.S. Criminal Law § 1946, p. 317:

'So too, where in view of the evidence and the entire record accused should have been adjudged guilty of a lesser offense or degree of crime, as a general rule the appellate court need not reserve or order a new trial, but may modify or order the modification of the judgment accordingly;'

The foregoing commentary also notes some authority to the contrary, but such is in the minority.

Oklahoma has a statute worded similarly to that of this state. It says in part that:

'The Appellate Court may reverse, affirm or modify the judgment appealed from * * *.' 22 O.S.1941 § 1066.

In Kilpatrick v. State (1942), 75 Okl.Cr. 28, 128 P.2d 246, the appellate court, on the basis of this statute, reduced the crime of which the appellant was found guilty from rape to assault and battery with intent where the evidence was insufficient for the greater offense but was sufficient to cover that of the lesser. The court said (p. 249):

'This court has the power, when it considers it necessary in the furtherance of justice, to modify the sentence which has been imposed. Section 3204, O.S.1931, 22 O.S.1941 § 1066. Under this statute the Criminal Court of Appeals has the power to reduce the judgment for first degree rape to an included offense and fix appropriate punishment. Cunningham v. State, 55 Okl.Cr. 67, 24 P.2d 1013; Lebo v. State, 40 Okl.Cr. 116, 267 P. 288; Plaster v. State, 45 Okl.Cr. 452, 283 P. 805.'

In a later case from the same state, Woolridge v. State (1953), 97 Okl.Cr. 326, 263 P.2d 196, the court on appeal exercised the same authority and stated: (pp. 201-202)

'After a careful study of the entire record, it is our conclusion that the physical facts and other testimony were sufficient to sustain a conviction for the included offense of assault with intent to commit rape, and in the furtherance of justice, this court will modify, and does hereby modify the conviction for rape in the first degree to that of the included offense of assault with intent to commit rape, and the punishment assessed the defendant is reduced from 15 years in the State penitentiary to a term of five years in the State penitentiary, and as thus modified the judgment is affirmed, under the precedent of Kilpatrick v. State, 75 Okl.Cr. 28, 128 P.2d 246; 22 O.S.1951 § 1066.'

In Wyoming, a similar statute exists authorizing the court on appeal to 'modify' the judgment and sentence. The high court of that state interpreted such a statute as authorizing the court to reduce the judgment to that of a lesser included offense where the evidence warranted the same. State v. Sorrentino (1924), 31 Wyo. 129, 224 P. 420, 34 A.L.R. 1477.

The court said, in construing that statute 31 Wyo. pp. 148-149, (224 P. 426, 34 A.L.R. pp. 1486-1487):

'This construction gives full force to the word 'modify' in section 7589, supra, and must, accordingly, be the construction that should be adopted giving this court full power to modify any judgment. This power should, of course, not be exercised where an error in the record is one which had deprived a defendant of a fair trial throughout, prejudicially affecting the conviction for any crime at all, and it may well be that the power can be exercised only in a comparatively few cases. We think, however, that in view of all of the evidence in this case, it is properly exercised in the case at bar. Manslaughter, though it may be a distinct crime from that of murder, is, nevertheless, included in the latter. State v. Quan Sue, 191 Iowa, 144, 179 N.W. 972, 976; People v. Farrell, 146 Mich. 264, 274, 109 N.W. 440; Com. v. McPike, 3 Cush. (Mass.) 181, 50 Am.Dec. 727. The verdict of murder in the second degree necessarily implies the finding of all of the facts essential to the offense of voluntary manslaughter, and the defendant has had the benefit of a trial for that offense as fully as though the information herein had contained that charge only. The verdict is, as we have seen, excessive and should be treated as illegal as to such excess, but as to such excess only.'

In the State of Ohio, the Constitution contains a provision very similar in wording to ...