De Shone v. State
| Decision Date | 27 December 1934 |
| Docket Number | 26247 |
| Citation | 193 N.E. 223,207 Ind. 380 |
| Parties | DE SHONE v. STATE |
| Court | Indiana Supreme Court |
Robert E. Proctor, of Elkhart, for appellant.
Philip Lutz, Jr., of Boonville, and Joseph P. McNamara, of Indianapolis, for the State.
This is an appeal from a conviction upon an indictment charging the appellant with the crime of rape upon the person of one Margaret Dunafin, a female child under the age of sixteen years.
The errors assigned for reversal are as follows:
(1) The court erred in overruling the motion of appellant to instruct the jury to return a verdict of not guilty.
(2) The court erred in overruling appellant's motion for a new trial.
Many reasons are assigned in the motion for a new trial, and the same will be discussed in their order.
The first assignment of error cannot avail the appellant. If it was error for the court to overrule the motion of the appellant to instruct the jury to return a verdict of not guilty, this would be a cause for a new trial, and should not be separately assigned as error. Bowen v. State (1920) 189 Ind. 644, 128 N.E. 926. However, the appellant has assigned this reason in his motion for a new trial, and the same will be considered thereunder.
Under propositions, points, and authorities, the appellant first contends that the court erred in overruling appellant's motion for a new trial for the reason that the verdict is not sustained by sufficient evidence of the commission of the crime of rape. It is insisted that there was no proof of penetration, and that the only evidence was to the effect that the prosecutrix had intercourse with the appellant and no evidence that she had sexual intercourse with the appellant. We cannot agree with the contention of appellant as to the meaning and construction to be placed upon the word 'intercourse' in the instant case. It appears from the evidence that the prosecutrix, Margaret Dunafin, who was just past fifteen years of age, and the appellant, who was twenty-four years of age, together with some other young people, on the night of October 2, 1931, went to a cottage, near Elkhart, owned by the father of the appellant. The cottage consisted of three or four rooms. There was one bedroom with a bed in it. The party played cards and drank some beer. The appellant and the prosecutrix went into the bedroom, and, as the prosecutrix testified, had intercourse. Louise Musbaum, a witness for the state, testified that she was with the party and that the appellant and prosecutrix went into the bedroom and that later she went into the bedroom and found them on the bed and that 'they had intercourse,' and that the prosecutrix 'had her dress up.' Other witnesses testified that the prosecutrix and appellant were in the bedroom together. Under the facts and circumstances in the instant case, we think it was clear that the prosecutrix meant sexual intercourse, and that the jury properly so construed it, and it was a question for the jury, under the evidence, to decide whether or not the appellant did have sexual intercourse with the prosecutrix.
In the case of State v. Workman (1911) 66 Wash. 292, 119 P 751, a conviction of statutory rape was sustained by the testimony of the prosecutrix that the defendant had 'intercourse' with her where it appeared that she meant sexual intercourse. Also see Parrett v. State (1928) 200 Ind. 7, 159 N.E. 755, and Shepherd v State, 111 Tex. Cr. R. 4, 10 S.W.2d 730.
Appellant complains of the admission in evidence of State's Exhibit No. 1. Exhibit No. 1 was a written statement signed by the prosecutrix and procured by the appellant. On the direct examination of the appellant he was examined concerning the written statement, and testified that she stated that the police influenced her to sign the statement and that the things she said were not true. In the rebuttal, Exhibit No. 1 was introduced to rebut what the appellant and one other witness had testified to concerning the statement. This was proper rebuttal evidence and properly admitted.
The appellant next insists that the court erred in overruling appellant's motion to instruct the jury to find him not guilty. This motion was made in writing at the close of all the evidence. This motion was properly overruled. This is not a case where there was a total lack of evidence to support the verdict. On the other hand, there was sufficient evidence given to support a verdict of guilty, and it would have been error for the court to have sustained the motion to direct a verdict in favor of appellant.
The appellant further contends, as a reason for a new trial, that the verdict is not sustained by sufficient evidence. We have carefully read all the evidence and find that there was sufficient evidence to sustain the verdict.
It is further contended by the appellant, as a reason for a new trial, that the jury was guilty of misconduct, and that the verdict was found and arrived at by means other than a fair expression of opinion on the part of all the jurors. The appellant asserts that a Mr. Blue, who was a member of the jury upon the voir dire examination stated that he had no prejudice against the defendant, and that he knew of no reason why he could not give the defendant a fair and impartial trial. One Gordan Fletcher made a supporting affidavit to the motion for a new trial that the said Blue prior to the trial, made the statement that 'the whole De Shone family should be run out of town.' Upon this supposed statement, the appellant claims there was misconduct on the part of said juror. And he also claims there was misconduct on the part of Henry M. Dussell, a member of the jury in this, to wit, that, immediately after the jury entered the jury room for deliberation, Dussell said to his fellow jurors that 'I think if young De Shone had a half way respectable father and family he might have had a chance to get out of this.' Ten of the members of...
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