Thomas v. State

Decision Date08 February 1949
Docket Number28475.
PartiesTHOMAS et al. v. STATE.
CourtIndiana Supreme Court

Appeal from Circuit Court, Marshall County; Marsh, Alvin F judge.

Byron E. Guse, and Frank J. Lanigan, both of LaPorte, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen., Merl M. Wall, Deputy Atty. Gen., and J. Emmett McMananmon, Atty. Gen., for appellee.

JASPER Judge.

The appellants were convicted of rape in the Marshall Circuit Court, under § 10-4201, Burns' 1942 Replacement.

The only errors assigned were:

1. The verdict of the jury is not sustained by sufficient evidence.

2. The verdict of the jury is contrary to law.

The appellant, Herman Gerald McCan, dismissed his appeal.

The sufficiency of the evidence to sustain the decision of the lower court is the only question presented.

The evidence most favorable to the appellee was substantially as follows: $The act was consummated and the prosecuting witness did not consent to it; she slapped and scratched the appellant's face; force was used by the appellant, and the prosecuting witness was 'dumped' by appellant and McCan into the back seat of the automobile, while her hands and feet were held, where the act complained of took place the appellant twisted and bent back the prosecuting witness' hands and arm; upon complaint by her that the appellant was hurting her neck, he stated 'that he did not care if he broke my damned neck'; the appellant's ear was bitten by the prosecuting witness at some time during the struggle; she was forced into a reclining position; the prosecuting witness tried to get out of the car, but each time her hands were grabbed and held; the prosecuting witness was not let out at her home, and, when appellant said, 'I'll be seeing you,' the prosecuting witness said, 'Not if I see you first'; at 6:20 a.m. of the morning that the prosecuting witness arrived home, she complained to her mother and father, and later, in the presence of her father, to the police and the prosecuting attorney.

This evidence was ample to support the verdict.

In Ritter v. State, 1946, 224 Ind. 426, 427, 428, 67 N.E.2d 530, the court said: 'In this court we examine the evidence to ascertain whether or not there was evidence from which the court could determine that the act of which complaint was made was committed by force and against the will of the prosecuting witness. Under the evidence different courts might reach different conclusions. However, the weight of the evidence, the credibility of the witnesses and the ultimate guilt or innocence of the appellant, presented a question for the determination of the trial court. There was evidence from which the court could find that the appellant was guilty of the crime charged in the affidavit, therefore we should not consider evidence to the contrary. Fiedler v. State, 1939, 215 Ind. 53, 18 N.E.2d 384.' Hunt v. State, 1939, 216 Ind. 171, 23 N.E.2d 681: McCoy v. State, 1937, 211 Ind. 109, 4 N.E.2d 535; Dowty v. State, 1932, 203 Ind. 228, 179 N.E. 720; Tosser v. State, 1928, 200 Ind. 156, 162 N.E. 49; Shine v. State, 1925, 196 Ind. 686, 688, 148 N.E. 411.

It is sufficient if a woman in good faith uses reasonable resistance. Anderson v. State, 1886, 104 Ind. 467, 4 N.E. 63, 5 N.E. 711. The authorities do not hold that she must use all of the physical force of which she is capable. Ritter v. State supra; Rahke v. State, 1907, 168 Ind. 615, 81 N.E. 584.

The amount and extent of resistance necessary to show that the act was committed against the prosecuting witness will present a question of fact for the jury. Anderson v. State supra; Rahke v. State, supra; Ritter...

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