Schaffer v. State
| Decision Date | 29 October 1930 |
| Docket Number | No. 25738.,25738. |
| Citation | 202 Ind. 318,173 N.E. 229 |
| Parties | SCHAFFER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from St. Joseph Circuit Court; Cyrus E. Pattie, Judge.
Leo Schaffer was convicted of assault and battery with intent to commit rape, and he appeals.
Affirmed.
George Sands, of South Bend, for appellant.
James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.
The appellant and four others were jointly indicted for rape alleged to have been committed upon one Agnes Zangerle June 22, 1928. The appellant on his motion was accorded a separate trial. The indictment was based on section 2429, Burns' 1926. The defendant's plea was not guilty. The trial was by jury, and the jury returned the following verdict: “We, the jury, find the defendant, Leo Schaffer, guilty of assault and battery with intent to commit rape, and further find that his age is 25 years.”
The court rendered the following judgment: “It is therefore considered and adjudged by the court that the defendant, Leo Schaffer, be, and he is hereby sentenced to imprisonment in the Indiana State Reformatory for a period not less than five years nor more than twenty-one years, and the sheriff of this county is charged with the execution of the within judgment.” Appellant appeals from such judgment.
The only error relied on for reversal is that the court erred in overruling the motion for a new trial. Under this assignment of error the appellant alleges that the court erred in permitting the witness Mary Zangerle, mother of the prosecuting witness, upon direct examination of the state, to answer certain questions over the objection and exception of the defendant.
The appellant has not complied with the part of Rule 22 of the Supreme Court which requires a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript. However, we have examined the transcript, and from such transcript it is apparent that the court excluded all the testimony given by said witness sought to be excluded by the defendant. No reversible error appears in the record in regard to the examination of said witness Mary Zangerle.
[1][2][3] Also the appellant alleges error in refusing to require a witness, Demas Murray, upon cross-examination, to answer certain questions. It is a settled rule in this state that it is not error for the trial court to limit questions on cross-examination of a witness to the subject covered or entered upon in the examination in chief, and it may be stated that the rule is that the limit of cross-examination of any witness is within the sound discretion of the trial court, and, there being no specific showing of error or abuse of that discretion, this court will not presume error. Eacock v. State, 169 Ind. 488, 82 N. E. 1039;Wheeler v. State, 188 Ind. 228, 122 N. E. 769; Rule 22, Supreme Court.
In this case there is no specific showing of error or abuse of discretion by the trial court, and such court did not err in unduly restraining the cross-examination of said witness, Demas Murray. Perfect v. State, 197 Ind. 401, 141 N. E. 52;Robinson v. State, 197 Ind. 148, 149 N. E. 888.
[4][5][6][7][8] The trial court did not err in giving court's instruction No. 1, which stated the issues in the case and recited the statute under which the indictment was found, and in refusing to give defendant's instruction No. 1. Appellant alleges that it was error to give court's instruction, and to refuse to give defendant's instruction No. 1, because at the time of this alleged offense there was no statute making assault and battery with intent to commit rape a crime. He says the Acts of 1927, p. 576, c. 201, repeal the Acts of 1921 defining the crime of assault and battery with intent to commit rape. Section 2, p. 576, c. 201, Acts 1927, is as follows:
“Whoever, unlawfully, has carnal knowledge of a woman forcibly against her will, or of a male or female child under sixteen (16) years of age, or whoever, being over eighteen (18) years of age, has carnal knowledge of a woman, other than his wife, which woman is insane, epileptic, idiotic, feeble-minded, or a pauper inmate of a poor asylum, he knowing of such condition of such woman; or whoever, being over eighteen (18) years of age, has carnal knowledge of a woman who is an inmate of the woman's prison or the Indiana girls' school, is guilty of rape in the first degree, and, on conviction, shall be imprisoned in the state prison for not less than five nor more than twenty-one years: Provided, further, That in cases where the female upon whom the crime is committed, is a child under the age of twelve years, the punishment shall be imprisonment in the state prison for life.
“A person who perpetrates an act of sexual intercourse with a female not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and on conviction, shall be punished by imprisonment in the state prison for not less than one nor more than ten years.”
Section 7 of this act, which is denominated the repealing clause, is as follows: “That all laws within the purview of this act are hereby repealed; but this repeal shall not affect any prosecutions pending or offenses heretofore committed under existing laws, and such prosecutions and offenses shall be continued and prosecuted to a final determination as if this act had not been passed, nor shall this repeal affect the enforcement of any fine or penalty or other punishment provided as a punishment for a violation of any civil statute; nor shall this act be construed to repeal any act passed at this session of the general assembly.”
It is clear that this repealing clause does not repeal the provisions in the Acts of 1921 defining the crime of assault and battery with intent to commit rape. The purview is the enacting part of a statute, in contradistinction to the preamble; and a repeal of all acts within the purview of the repealing statute should be understood as including all acts or parts of acts in relation to all cases which are provided for by the repealing act, and no more. But a statute may have the effect to repeal a former statute or some provision of it, though it be silent on the subject of repeal. In such cases repeal is inferred from necessity, if there be such conflict that the old and new statutes cannot stand together. Repugnancy in principle merely, between two acts, forms no reason why both may not stand. Nor is one statute repealed by the repugnant spirit of another; nor for conflict with an unconstitutional provision. See section 246, p. 460, Lewis' Sutherland, Stat. Const. vol. 1, (2d Ed.).
This clause upon which the indictment was founded is section 361 of the Criminal Code, as amended by the Acts of 1921, p. 373, c. 148. The Acts of 1927, p. 576, c. 201, § 2, describing rape in the first and second degrees, is entitled, “An Act concerning public offenses, and repealing all laws and parts of laws in conflict with the provisions of this act.” It does not purport to be an amendment of section 361 of the Criminal Code as amended by the act of 1921. It describes what shall constitute rape in the first degree and what shall constitute rape in the second degree, but it says nothing about the clause in the Criminal Code defining assault and battery with intent to commit the crime of rape. In discussing a similar repealing clause in another statute, in State ex rel. v. Ives, 167 Ind. 13, 78 N. E. 225, 226, it is said: ’ See...
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