Shock v. State, 24889.
| Decision Date | 19 May 1926 |
| Docket Number | No. 24889.,24889. |
| Parties | SHOCK v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Allen Circuit Court; Sol A. Wood, Judge.
Fred Shock was convicted of rape, and he appeals. Affirmed.
Robert A. Buhler, of Ft. Wayne, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
Appellant was convicted of the rape of a girl 11 years old. He was tried by the court without a jury, was found guilty, and was sentenced to imprisonment for life. Overruling his motion that he be discharged, his motion in arrest of judgment, and his motion for a new trial, are assigned as errors.
[1] By the motion for a new trial he seeks to challenge the sufficiency of the evidence to sustain the finding, but none of the evidence is in the record. The order book entries recite that on the 19th day of February, 1924, at the February, 1924, term of court, the motion for a new trial was overruled, when 60 days were allowed for preparing and tendering all bills of exceptions for filing, and that the bill of exceptions purporting to contain the evidence was presented, certified, and filed almost a year later, on the 16th of February, 1925, at the February, 1925, term. This did not make the evidence a part of the record. Section 656, Burns' 1914 (section 626, R. S. 1881); Ewbank's Manual (2d Ed.) §§ 24, 33. However, what is set out in appellant's brief as having been testified at the trial would be amply sufficient to support the verdict of guilty, if contained in a proper bill of exceptions.
[2] The motion to discharge the accused at the conclusion of the evidence was for the alleged reasons (a) that the facts stated in the affidavit do not constitute a public offense, and (b) do not charge such offense with sufficient certainty, in that (as it averred), at the time defendant waived arraignment and pleaded not guilty, and until after the witnesses were sworn and after one of them had commenced to testify, on February 4, 1924, the affidavit had charged that the offense was committed on the impossible, because future, date of “the - day of April, 1924,” after which commencement of the trial it was alleged to have been changed to read “1923.” But, even if it were shown to have been true that the affidavit originally failed to charge a public offense, or failed to do so after the alleged alteration, such fact would not give defendant a right to be discharged from custody if the trial judge was convinced by the evidence that less than a year before, and within the period of limitation of actions (section 1887, Burns' 1914 [section 20, c. 169, Acts 1905, p. 587]), he had committed the alleged offense. Under these circumstances it would be the duty of the court to detain him in custody until a proper indictment could be returned or a proper affidavit filed, charging him with the offense. Section 2066, Burns' 1914 (section 195, c. 169, Acts 1905, p. 626); State v. Simpson, 166 Ind. 211, 214, 76 N. E. 544, 1005. No error was committed in overruling this motion.
The record contains two affidavits made by the same affiant on the 4th of February, 1924, each charging that at the county of Allen in the state of Indiana the defendant therein named “did then and there unlawfully and feloniously make an assault in and upon R. F. then and there being a female child under the age of 16 years, to wit, 11 years, and did then and their feloniously ravish and carnally know her, the said R. F., contrary,” etc. Both of these affidavits appear in the record under the same order book entry, which states that the prosecuting attorney “files a new affidavit, charging the defendant, Fred Shock, with rape, which affidavit is in these words”; one of them being set out immediately following the other, and the second affidavit being followed by the statement in the order book that “comes now the defendant in person and by counsel (naming them), and the said defendant waives arraignment and pleads not guilty.” The first of these two...
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