Stearns v. State

• Citation: 235 Ind. 391,134 N.E.2d 148
• Decision Date: 10 May 1956
• Docket Number: No. 29283,29283
• Parties: Robert STEARNS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 148

134 N.E.2d 148

235 Ind. 391

Robert STEARNS, Appellant, v. STATE of Indiana, Appellee.

No. 29283.

Supreme Court of Indiana.

May 10, 1956.

William H. Sparrenberger, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Richard M. Givan, Deputies Atty.Gen., for appellee.

EMMERT, Judge.

This is an appeal in forma pauperis from a judgment on a finding that appellant was guilty of assault and battery with intent to commit the felony of rape on a female child under 16 years of age as charged in an indictment, upon which he was sentenced for a term not less than one nor more than ten years. The error assigned on appeal is the overruling of appellant's motion for new trial.

Appellant was represented by counsel, entered a plea of not guilty, and waived a trial by jury. The evidence, when viewed most favorably to the state, discloses the following:

The prosecutrix, who was 14 years of age, was walking home with her sister aged twelve years, the night of May 8, 1954, at about 9:50 o'clock in the City of Indianapolis. The girls saw appellant in the light comming from a funeral home on Weghorst Street, and he turned and started to follow them on East Street, when appellant grabbed the prosecutrix around her knees and shoved her down on the grass on the front yard of a private home. She struggled, screamed, and hit him over the head with an overnight case, and momentarily escaped from his grasp, when he grabbed her again by her knees and threw her on the grass. She said he was on top of her, but she struggled and hit him again, and continued to scream. Her sister continued screaming from the first attack. An occupant of the premises where the attack occurred turned on the porch light, and appellant ran away.

The girls ran to their home at 526 East Minnesota Street, told their father, and the police were called. The father took the prosecutrix to the place of the attack, and some police officers were already there. Then the father took her in his truck to look for appellant, and in about thirty minutes saw him, whereupon the father seized him and held him while the prosecutrix called the police, who soon arrived and arrested appellant.

Appellant said nothing during the attack, but did not attempt to rob either girl. Neither child smelled intoxicating liquor upon him. Appellant testified in his own behalf and denied the attack. Both girls said they had seen appellant at various times in a tavern near there, and sometimes in a...