Straw v. State, 24817.
| Decision Date | 20 November 1925 |
| Docket Number | No. 24817.,24817. |
| Citation | 149 N.E. 430,197 Ind. 606 |
| Parties | STRAW v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clark County; J. W. Fortune, Judge.
Roy Straw was convicted of assault and battery with intent to commit rape, and he appeals. Affirmed.Douglass & McBride, of Jeffersonville, for appellant.
A. L. Gilliom, of Indianapolis, for the State.
The appellant was convicted of assault and battery with intent to commit the crime of rape upon a female child under the age of 16 years. From the judgment he appeals. The only questions discussed in his brief arise upon the action of the court in overruling his motion for a new trial.
[1] He says the verdict of the jury is not sustained by sufficient evidence, and under this specification he asks us to reverse the judgment on the weight of the evidence. The rule in cases of this kind is that only the evidence in support of the verdict of the jury can be considered, and, if the evidence tending to support the verdict contains some evidence on every essential fact necessary to support the verdict, the verdict must be sustained, and the court cannot consider any evidence contradicting or tending to contradict the evidence in support of the verdict.
[2] The evidence shows that the complaining witness was 15 years old on the 15th day of September, 1923, and that the defendant assaulted her and had sexual intercourse with her on the 8th day of August, 1923. It also appears from the evidence that the act was committed in Clark county, in the state of Indiana. It thus appears from the evidence that all the material facts constituting the offense are proven.
[3] The appellant says that the prosecuting witness is unworthy of belief, and her story connecting appellant with her downfall is false. These were questions for the jury in trying the case, and, a verdict having been rendered by the jury, we are not at liberty to interfere. We cannot weigh the evidence. See Deal v. State, 140 Ind. 354, 39 N. E. 930;Lee v. State, 156 Ind. 541, 60 N. E. 299;Williams v. State, 165 Ind. 472, 75 N. E. 875, 2 L. R. A. (N. S.) 248;Lee v. State, 191 Ind. 515, 132 N. E. 582.
In Chesterfield v. State, 194 Ind. 282, 141 N. E. 632, it was held that a verdict of assault and battery with intent to commit a rape in a prosecution for statutory rape is sufficiently sustained upon the evidence of the prosecutrix of the commission of the crime and evidence that she was under 16 years of age.
[4] There may be a conviction of assault and battery with intent to commit a felony, although the felony is actually committed. Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22;Polson v. State, 137 Ind. 519, 35 N. E. 907.
The appellant claims that the court erred in giving certain verbal instructions which he alleges were given, although the appellant had requested that the instructions be given in writing. In the transcript appear certain instructions given by the court at the request of the state and certain instructions tendered by the state and given; but the instructions tendered by appellant and given by the court are numbered in blank, and no exceptions appear to be reserved to the giving of the instructions tendered by the state and given.
It further appears that the instructions in this case were not brought into the record by a bill of exceptions. There is no bill of exceptions bringing into the record all of the instructions given in said case. It has been held that no question is presented as to the giving of instructions, where it does not appear from the bill of exceptions containing such instructions whether or not it contains all the instructions given in the case. Hollon v. State, 186 Ind. 374, 114 N. E. 5;Bennett v. State, 188 Ind. 380, 123 N. E. 797.
[5][6] When in a criminal case it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all instructions given. Cooper v. State, 120 Ind. 377, 22 N. E. 320. In such cases the presumption is that the substance of the instructions asked was embraced in the instructions given by the court...
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Robinson v. Priest
...196 Ind. 649, 652, 149 N.E. 162; Jackson v. State ex rel. Board of Com'rs (1924), 194 Ind. 130, 135, 142 N.E. 1; Straw v. State (1925), 197 Ind. 606, 609, 149 N.E. 430, 151 N.E. For the foregoing reasons, the judgment of the trial court should be affirmed. Judgment affirmed. Costs taxed aga......