Sharp v. State

• Citation: 123 N.E. 161,188 Ind. 276
• Decision Date: 08 May 1919
• Docket Number: 23,469
• Parties: Sharp v. State of Indiana
• Court: Supreme Court of Indiana

123 N.E. 161

188 Ind. 276

Sharp v. State of Indiana

No. 23,469

Supreme Court of Indiana

May 8, 1919

From Hamilton Circuit Court; Ernest E. Cloe, Judge.

Prosecution by the State of Indiana against John Sharp. From a judgment of conviction, the defendant appeals.

Reversed.

Albert C. Pearson, Christian, Christian & Waltz, for appellant.

Ele Stansbury, Attorney-General, and Dale F. Stansbury, for appellee.

OPINION

Lairy, J.

Appellant was charged with the crime of rape committed against the person of a child under the age of consent. A trial by jury resulted in a judgment of conviction, to reverse which this appeal is prosecuted. It is asserted that the amended affidavit on which the judgment rests does not state facts sufficient to constitute a public offense, and that, for the reason stated, the trial court erred in overruling appellant's motion to quash the affidavit, and also in overruling his motion in arrest of judgment. This question is presented by the first and fourth assignments of error. The only particular in which it is claimed that the affidavit is defective is that it does not state that the child against whom the offense was committed was not at the time the wife of the accused. It is true that a husband cannot be guilty of the crime of rape by having carnal knowledge of his wife without her consent and against her will or on account of her being under the age of consent, or on account of her being insane, epileptic or imbecile. In the definition of the offense as applicable to women who are insane, or who are idiotic or otherwise imbecile, the statute of this state expressly excepts the husband of such a woman from its operation; but as to other women against whom the offense may be committed it makes no such express exception with regard to the husband. The statute, however, cannot apply to the husband of the injured party in any case.

The question here presented relates to the manner in which the offense must be charged. Wharton states that the indictment need not allege that the female outraged was not the wife of the defendant, citing a number of decisions which sustain the text. 1 Wharton, Criminal Law (11th ed.) § 741. In the case of Commonwealth v. Fogerty (1857), 8 Gray (Mass.) 489, 69 Am. Dec. 264, the court says: "Nor was it necessary to allege that the prosecutrix was not the wife of the defendant. Such an averment has never been deemed essential in indictments for rape, either in this country or in England. The precedents contain no such allegations." It may be shown as a defense that the woman against whom the offense is alleged to have been committed is the wife of the person who is charged with committing the rape, but it is not necessary to negative this fact in the indictment. Curtis v. State (1909), 89 Ark. 394, 117 S.W. 521; State v. Morrison (1912), 46 Mont. 84, 125 P. 649; State v. Williamson (1900), 22 Utah 248, 62 P. 1022, 83 Am. St. 780; State v. White (1890), 44 Kan. 514, 25 P 33.

If the statute under which the indictment is drawn excludes from its operation the husband of a female against whom the offense may be committed, the indictment must conform to the statute in that particular. People v. Burke (1868) 34 Cal. 661; Cutler v. State (1914), 15 Ariz. 343, 138 P. 1048; People v. Stowers (1912), 254 Ill. 588, 98 N.E. 986. The portion of the statute on which the affidavit in this case is based makes no such exception. The affidavit is sufficient.

Under his motion for a new trial which is assigned as error appellant presents objections to several instructions. The part of instruction No. 18 to which objection is made reads as follows: "And by reasonable doubt is not meant a whim or captious or speculative doubt; it is properly termed a reasonable doubt as distinguished from an unreasonable or speculative doubt, and it must arise from all the evidence relating to some material fact or facts charged in the affidavit, and not spring from mere subsidiary evidence. Such doubt may also arise from the absence of evidence as to material matters." The objection is specifically directed to that part of the instruction which tells the jury that a reasonable doubt cannot spring from mere subsidiary evidence.

The rule which requires the state to prove the guilt of the defendant beyond a reasonable doubt applies only to the essential facts constituting the crime charged; but the rule does not apply to the proof of subsidiary facts which are not essential elements of the crime, but which, if shown to exist, have a tendency to prove or to disprove one or more of the constituent elements of the crime. Wade v. State (1880), 71 Ind. 535; Hinshaw v. State (1896), 147 Ind. 334, 47 N.E. 157.

While it is not necessary to a conviction that such subsidiary facts be proved beyond a reasonable doubt, it is still the law that the essential facts which constitute the offense must be established by that degree of proof before a conviction is justified; and, in determining whether such essential facts are established beyond a reasonable doubt the jury may consider the whole of the evidence as well as the want or absence of evidence. Can it be truly said that the jury cannot consider evidence adduced to prove a subsidiary fact in determining whether an essential fact is established beyond a reasonable doubt? If, after considering all the evidence in the case, the jury entertains a reasonable doubt as to any essential fact constituting an element of the offense, the defendant is entitled to an acquittal whether such doubt arises from the evidence or the lack of evidence. In determining whether such a doubt arises from the evidence, the jury has a right to consider the whole evidence, and the defendant has a right to have the entire evidence so considered. The court cannot correctly exclude from the consideration of the jury, on such questions, the evidence adduced in support of subsidiary facts. If, after considering the entire evidence, the jury entertains a reasonable doubt as to the fact essential to...