Swartz v. State, 30608
| Decision Date | 14 February 1966 |
| Docket Number | No. 30608,30608 |
| Citation | 247 Ind. 166,214 N.E.2d 165 |
| Parties | Eldon SWARTZ, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Bloom & Bloom, Ft. Wayne, for appellant.
John J. Dillon, Atty. Gen., James Manahan, Deputy Atty. Gen., for appellee.
The appellant was charged with an act of kidnapping on the 2nd day of March, 1963. On January 21, 1964, following a trial before the judge of the court, the appellant was found guilty of that offense under Burns' Ind.Stat.Anno. Sec. 10-2901 (1956 Repl.).
It is first urged that the court erred in overruling appellant's motion in arrest of judgment, based on the ground that the charge does not state facts sufficient to constitute an offense and that the amended affidavit was defective in that it was not resworn to. The transcript contains an affidavit of the clerk of the court stating the amended affidavit has been lost from the files in the case. The motion in arrest of judgment is not sworn to and therefore has no probative value in contradicting the record of the court. The record of the court shows the following:
'Comes now the State of Indiana and files amended affidavit for Kidnapping, which is in the following words and figures, to-wit:' (Our italics.)
The court record shows that an 'amended affidavit' was filed. This record is sufficient to dispose of the unsworn motion in arrest of judgment that the amended affidavit was not sworn to. We find no error in the court's overruling of the motion in arrest of judgment.
It is next urged that it was error to permit the prosecuting attorney to cross-examine the appellant and thereby draw from the appellant an admission with reference to a prior conviction. The record shows that the appellant had attested to the fact of his past convictions on direct examination and that he had stated he had been convicted for practically nothing. This opened up the question for cross-examination, both on the issue of the impeachment of the appellant and his credibility. We find no error in the court's ruling of which complaint is made.
It is further contended that it was error to refuse to allow appellant's witness, James Rossi, to testify concerning a conversation which it is claimed he overheard concerning marriage talk between the appellant and the prosecutrix. The State points out that no question is presented to this Court for review on that point, since the appellant did not point out to the Court the object of such questioning after objections were made thereto and did not make an offer to prove to the trial court what the witness would testify to specifically. It is now stated that such testimony would have impeached the testimony of the prosecuting witness who stated she had not at any time 'considered' marrying the appellant. The prosecutrix had never been asked whether or not she had had a conversation regarding marriage at the time and place designated, and therefore there could not be a specific impeachment of her by the questions propounded to the witness. Aside from the answer to the question having no specific significance, as we pointed out above, it was proper for the court to sustain an objection thereto when there was no offer to prove made to the court. Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157; Noe v. State (1883), 92 Ind. 92.
A large portion of the argument which the appellant presents in this case is on the proposition that the evidence herein was insufficient to justify the conviction. It is admitted in argument that a prima facie case was made to sustain the conviction. It is not urged that there was a failure of proof, but rather that the evidence came almost entirely from the prosecutrix, and therefore does not have sufficient probative value to be accepted by the court to sustain the conviction. As we have said many times before, it is not for this Court on appeal to say who is telling the truth in the trial court below. We can only look at the evidence most favorable to the State where there has been a conviction. We may not weigh the evidence. Metz v. State (1963), 244 Ind. 536, 194 N.E.2d 617; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220; Denson v. State (1960), 240 Ind. 324, 163 N.E.2d 749.
Briefly, the evidence shows that the prosecutrix, Mrs. Sarah Brockmeyer, was a divorced office secretary in her late thirties, who lived alone on the first floor of a two story apartment building in Fort Wayne, Indiana. The appellant was forty years of age, three times divorced, a two-time convicted sex offender, who was employed as a traveling salesman and lived with his parents near Fort Wayne. The parties became acquainted in 1962 when Mrs. Brockmeyer sold her house to the parents of the appellant. They began seeing each other frequently, as much as two or three times a week, for a period of about six months, or until January, 1963, when they terminated or attempted to terminate their relationship by mutual consent. The appellant urged Mrs. Brockmeyer to renew their relationship, and she reluctantly agreed. At the end of February the appellant took Mrs. Brockmeyer to her apartment and forced his attentions upon her. At one time he placed his hands on her throat and threatened to kill both her and himself also. Over her objections, he stayed with her during the night. Mrs. Brockmeyer had an arrangement with a girl friend to call her each morning in arranging to go to work. The call was made by the girl friend and she requested Mrs. Brockmeyer to drive her to work. The appellant agreed and went along, sitting in the back seat of the automobile. After the girl friend was taken to the place of employment, Mrs. Brockmeyer testified the appellant forced her to drive them to Columbia City for the purpose of obtaining a marriage license. Then they went together to the Lutheran Hospital for blood tests. When the prosecutrix was alone with a nurse for that purpose, she asked that the test be delayed and told her she was being forced into the marriage and that she knew of no way she could avoid it without endangering her life. The nurse advised the prosecutrix to contact the police.
Thereafter, the appellant drove Mrs. Brockmeyer back to her apartment where he stayed for the rest of the day. In the evening she informed appellant that she had agreed to go to a party, and he permitted her to leave. As soon as Mrs. Brockmeyer left her apartment, she proceeded to the police. Fearing that she would be treated as an hysterical woman, she first contacted her former husband and had him inform the police of her predicament. The police officers went with her to her apartment, where they found the appellant still there. After questioning the appellant, the police sent him on his way...
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