Tyrrel v. State
| Decision Date | 12 January 1912 |
| Docket Number | No. 22,028.,22,028. |
| Citation | 177 Ind. 14,97 N.E. 14 |
| Parties | TYRREL v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fayette County; George L. Gray, Judge.
Alexander D. Tyrrel was convicted of assault and battery, and appeals. Reversed, with instructions to sustain motion for new trial.
Conner, Conner & Chrisman, for appellant. Thomas M. Honan, Thomas H. Branaman, Edwin Corr, and Jas. E. McCullough, for the State.
Appellant was tried on an indictment charging him with assault and battery on a female child under the age of 16 years, to wit, of the age of 7 years, with the unlawful and felonious intent to ravish and carnally know said child, in violation of section 2240, Burns 1908. He was acquitted of the intent charged and found guilty of assault and battery only. The crime of rape upon a female child under 16 years is defined by section 2250, Burns 1908 (Acts 1907, p. 85). The only error assigned in this court is that the court erred in overruling appellant's motion for a new trial. At the time of the trial the female child upon whom the crime is alleged to have been committed was about 7 years and 11 months of age. After an examination in regard to her capacity to testify, the court determined that she was competent to testify under the second clause of section 520, Burns 1908, which provides that children under 10 years of age are incompetent to testify “unless it appears that they understand the nature of an oath.” Over the objection of appellant that she was incompetent, said witness was permitted to testify, and, after the conclusion of her testimony, appellant moved to strike out the same for the reason “that her examination shows that she has not sufficient knowledge of the oath to testify in a case of this kind.” This motion was overruled by the court.
[1] Whether a child under 10 years of age is competent to testify is a question for the trial court to determine, and when, as in this case, the trial court determines that the witness is competent, it would require a case of manifest abuse of discretion to authorize this court to interfere. Blackwell v. State, 11 Ind. 196, 198;Batterson v. State, 63 Ind. 531, 536;Taylor v. McGrath, 9 Ind. App. 30, 32, 36 N. E. 163, and cases cited; State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877, and cases cited; State v. Jackson, 9 Or. 457;Wade v. State, 50 Ala. 164;Smith v. Commonwealth, 85 Va. 924, 926, 927, 9 S. E. 148; 12 Cyc. 893.
In Blackwell v. State, supra, this court said 11 Ind. on page 198: “But we must in this case presume in favor of the action of the circuit court for the reason that that court had the proposed witness in its presence and was therefore enabled to estimate to some extent her capacity, from her appearance, and the manner of her replies in the examination.”
The court in permitting the witness to testify only determined that she was competent, and her credibility as a witness and the weight to be given to her testimony were for the determination of the jury. Whether or not she was a competent witness was a question of fact, determined by the trial court, and, as the court was satisfied of the competency of the witness to testify, we cannot say that there has been such an abuse of discretion as would authorize this court to interfere.
[2] Evidence was admitted over the objection of appellant of similar offenses by appellant to prove the intent charged in the indictment. Appellant claims: (1) That such evidence is not admissible in a case like this; (2) that, if it is, the same must not be equivocal, but must point with certainty to the commission of a like crime. It is unnecessary to consider either of said objections for the reason that appellant was acquitted of the intent charged in the indictment. It has been uniformly held by this court that when an issue in a cause, civil or criminal, has been found in favor of a party, the erroneous admission of evidence concerning such issue or the giving of erroneous instructions as to such issue is harmless and does not constitute reversible error in favor of the party in whose favor such issue is found. Ginn v. State, 161 Ind. 292, 295, 68 N. E. 294, and cases cited; Shields v. State, 149 Ind. 395, 404, 49 N. E. 351;Hart v. State, 149 Ind. 585, 49 N. E. 580;Braxton v. State, 157 Ind. 213, 215, 61 N. E. 195;Starr v. State, 160 Ind. 661, 666, 67 N. E. 527;Rains v. State, 152 Ind. 69, 52 N. E. 450, and cases cited; Rollins v. State, 62 Ind. 46;Bannen v. State, 115 Wis. 317, 91 N. W. 107, 110, 111;Pittsburgh, etc., R. Co. v. Indiana, etc., Co., 154 Ind. 322, 335, 336, 56 N. E. 766;Miller v. Louisville, etc., R. Co., 128 Ind. 97, 102, 27 N. E. 339, 25 Am. St. Rep. 416;Robbins v. Masteller, 147 Ind. 122, 125, 46 N. E. 330;Wright v. McLarinan, 92 Ind. 103, 106;Swygart v. Willard, 166 Ind. 25, 34, 76 N. E. 755;Peden v. Scott, 35 Ind. App. 370, 373, 73 N. E. 1099.
[3] This prosecution was commenced before the mayor of Connersville, and at the trial of appellant before the mayor the prosecuting witness testified, on behalf of the state. Her evidence was taken down by a stenographer. At the trial below, appellant for the purpose of impeaching said witness, after laying the proper foundation therefor, called said stenographer as a witness, who...
To continue reading
Request your trial