Thomas v. State, 29679

• Decision Date: 03 December 1958
• Docket Number: No. 29679,29679
• Citation: 154 N.E.2d 503,238 Ind. 658
• Parties: Delbert Leroy THOMAS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 503

154 N.E.2d 503

238 Ind. 658

Delbert Leroy THOMAS, Appellant, v. STATE of Indiana, Appellee.

No. 29679.

Supreme Court of Indiana.

Dec. 3, 1958.

Floyd F. Cook, Cook, Cook, Bayliff & Mahoney, Raymond H. Zirkle, Kokomo, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Merl M. Wall, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a conviction of public indecency. The appellant was tried by the court and convicted upon the testimony of two small girls, Diane, age seven, and Veronica, age eight, at the time of the alleged offense.

Their story was, that on June 11, 1957, about 1:00 to 1:30 P.M., they left their home to play in the park nearby in the city of Kokomo, Indiana. Diane said they saw a man, the appellant, who waved at them and she waved back, just before they came back home an hour later to get some fishing poles. They then went back to a small stream in the park and were fishing when they again say they saw the same man, the appellant. They state he talked to them, showed them some obscene pictures and made an indecent exposure to them. They immediately became frightened and ran to the home of Veronica and told her mother of the episode. The mother said this occurred 'close to 4:00 o'clock' (P.M.).

The police was notified but no one at the time was apprehended. The evidence is vague and uncertain as to just how the appellant was finally identified as the same person the two girls claim molested them on June 11, 1957. Diane said she had never seen the appellant since June 11, 1957 until the day of the trial in the court room (December 19, 1957).

Veronica stated she and her father looked for the man in the park a number of times and she pointed out a car that looked like the one the man had the day the girls fled from him in the park, although there is no evidence they, at the time, noticed or had time to notice any car he might have had. The evidence does not reveal that Veronica ever pointed the appellant out to her father or the police before he was arrested. Apparently the arrest was made upon her description of the car and the man so far as the record of the evidence discloses.

The father testified that the girls gave him 'a very vague description' of the man, but he continued to hunt for him by means of the first two license numbers of the car which he said the girls gave him.

After appellant's arrest, Veronica and her father went to the police station and there she identified the appellant. That was 'about two months later'. A picture of appellant was taken at the time. This picture was shown to both girls a day or two before the trial. Diane, at one place in the testimony, states she was describing the appellant as she remembered him in the picture, rather than as she remembered the man involved on June 11, although she later corrected this statement.

Both girls were asked to describe the man they saw on June 11. The descriptions were in general, that he was dirty, covered with grease, and his face was covered with whiskers. This hardly supported the description of the appellant at the time of his arrest or at the trial. In attempting to get more details from them at the trial, the girls forty four times answered, 'I can't remember' or that in substance.

The appellant took the stand in his own defense and testified he was 35 years old, married and had three small children, a boy age 11 and two daughters, ages 9 years and 2 months. When arrested on July 24, 1957 in the park near a golf course, he said he was hunting golf balls as he frequently did when in the park.

The evidence up to this point as to the identity, cannot be said to be very convincing, even if we overlook the fact that it came from two small girls with identifications made from two to six months later. There are, however, certain inconsistencies and conflicts in the evidence which strain the plausibility of their identification beyond the limits of trustworthiness.

The appellant proved by independent and unimpeachable evidence that he was working on the day in question for the Continental Steel Company in Kokomo from 7:00 in the morning until 3:30 in the afternoon. On the particular day in question the automatic time card showed he worked from 6:53 A.M. until 3:33 P.M.

There is no possibility the little girls could have seen him and he waved to them, and they waved to him, in the park about an hour after they left their home at 1 or 1:30 P.M., nor is there scarcely and possibility he could have left the Steel Company at 3:33 and arrived at the park, helped the girls fish, moved to another spot, showed them an obscene picture book, and done other things which they report and still have the girls get back home 'close to four o'clock'. The testimony was, that it would take about fiteen minutes to get to the creek in the park from the Steel Company.

There are other discrepancies in the evidence. Diane said the man had a gold tooth. The appellant never had one.

Counsel in argument admit the difficulty in harmonizing the uncontradicted evidence with the story of the two girls, but urge us to assume they were somewhat misled by the cross-examination. It is true we must recognize that children of that age are easily influenced by suggestion from either side of a controversy. Diane seemed to be carried away with the excitement of the trial. She, for example, related that her grandfather and a boy caught seven fish on one string at a time. At another point, when asked what room she was in at the trial, she glibly said '308', whereas, in fact, the court room bore no number.

We do not intend any criticism of the little girls, since the...