State v. Markins
| Decision Date | 26 May 1884 |
| Docket Number | 11,442 |
| Parties | The State v. Markins et al |
| Court | Indiana Supreme Court |
From the Vigo Circuit Court.
J. W Shelton, Prosecuting Attorney, D. N. Taylor, J. G. McNutt and S. R. Hamill, for the State.
S. C Davis, S. B. Davis, G. E. Pugh and H. C. Pugh, for appellees.
The indictment charges the appellees with having committed the crime of incest on the 6th day of March, 1882, and the State introduced evidence of incestuous intercourse on that day. After the introduction of this evidence the State offered to prove that prior to that time acts of indecent familiarity took place between the appellees, and that they had been guilty of sexual intercourse. At the time this evidence was offered, the prosecuting attorney stated to the court that the purpose in offering it was not to prove distinct and substantive offences, but to prove lascivious and improper conduct between the defendants prior to March 6th, 1882. The court excluded the evidence, and that ruling is properly presented for our consideration.
The purpose for which the evidence was offered having been stated to the trial court, the inference that it was offered generally, and without any limitation as to the object of the prosecutor in offering it, is fully rebutted. The question for our decision is, therefore, whether it was competent for the purpose for which the State informed the court it was offered.
In Lovell v. State, 12 Ind. 18, it was held that evidence of acts of sexual intercourse subsequent to the time laid in the indictment, and identified by the evidence introduced by the State was incompetent, and it is confidently asserted that the decision in that case governs the present. But the cases are very different. Previous acts of lascivious familiarity would tend strongly to show the commission of the specific offence charged by the State, for it is impossible to doubt that evidence of such a character tends to make it probable that the parties did commit the specific offence charged. Such evidence goes in proof of the main offence, because it is evidence of the probability of its perpetration. Where the acts precede the offence, they constitute the foundation of an antecedent probability; but where they follow the main offence their force and effect are materially different. It is one thing to affirm that evidence of prior incestuous intercourse is competent, and another thing to affirm that evidence of subsequent sexual intercourse is not competent; it is, therefore, not difficult to discriminate between the two cases.
It is a rule of elementary logic, as well as of rudimentary law, that evidence which tends to establish facts rendering it antecedently probable that a given event will occur, is of material relevancy and strong probative force. It is more probable that incestuous intercourse will take place between persons who have conducted themselves with indecent familiarity than between those whose behavior has been modest and decorous. It can not be doubted that it is competent to show the previous intimacy between the persons charged with the crime of incest, their behavior toward each other and their acts of impropriety and indecency. If it be proper to show acts of indecent and lascivious character, then, surely it must be proper to show the act to which all such indecent and lascivious acts lead, and in which they will often culminate. It can not be held, upon any principle of law or logic, that the State may show acts of improper intimacy up to the very act of sexual intercourse, and then must stop, although the sexual intercourse is but the usual result of the previous lascivious conduct. If the course of conduct tends to show that the incestuous intercourse charged in the indictment did take place, then, surely, the culminating act of sexual commerce must be evidence of a convincing character. It would be a singular rule that would admit evidence of lascivious conduct, and yet exclude evidence of the act, which of all the series supplies the strongest evidence that the crime charged was one likely to be committed. If the rule were that the State might show previous lascivious conduct, but must not show an act of sexual intercourse, we should have the singular anomaly of a legal rule rejecting evidence simply because of its strength and importance. The usual rule of common sense, as of law, is, that the more material the evidence and the stronger its probative force the greater the reason for...
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...between the sexes, it is permissible to show prior acts of the same character. Such cases are sometimes (as in State v. Markins et al. , 95 Ind. 464, 48 Am. Rep. 733 [(1884)] ) said to form an exception to the general rule that one crime cannot be proved in order to establish another indepe......
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