Hay v. State, No. 22,132.

Docket NºNo. 22,132.
Citation98 N.E. 712, 178 Ind. 478
Case DateMay 28, 1912
CourtSupreme Court of Indiana

178 Ind. 478
98 N.E. 712

HAY
v.
STATE.

No. 22,132.1

Supreme Court of Indiana.

May 28, 1912.


Appeal from Circuit Court, Du Bois County; John L. Bretz, Judge.

Floyd Hay was convicted of seduction, and he appeals. Affirmed.


Thos. W. Lindsey and Chas. P. Bock, for appellant. Thomas M. Honon, Thomas H. Branaman, Edwin Corr, and James E. McCullough, for the State.

MORRIS, J.

Prosecution by affidavit for seduction under section 2354, Burns' Stat. 1908. Appellant filed a motion to quash the affidavit which was overruled. Trial by jury; verdict of guilty. From a judgment of conviction, this appeal is prosecuted.

[1] Appellant contends the lower court erred in overruling his motion to quash. The motion was oral, and the record discloses no

[98 N.E. 713]

ground on which it was based; consequently it presents nothing here for consideration. Scott v. State, 96 N. E. 125;Hawks v. State, 96 N. E. 593;Leach v. State, 97 N. E. 792.

Appellant has assigned as error here that the affidavit does not state facts sufficient to constitute a public offense. The affidavit is sufficient when assailed for the first time in this court. Robinson v. State, 97 N. E. 929. Complaint is made of instructions numbered 5 and 6 given by the court on its own motion. These instructions related to corroborative evidence required by section 2120, Burns' Stat. 1908. Without setting out these instructions, it is sufficient to say that neither of them was erroneous.

[2] In instruction No. 10 given by the court on its own motion, the jury was directed as follows: “In determining whether the prosecuting witness has been corroborated by one or more witnesses, or by a witness or witnesses and strong circumstantial evidence, you have a right to consider along with all the evidence given in the case *** the fact, if it be a fact, that at about the time of the alleged seduction the prosecuting witness made any preparations for herself in getting ready for the approaching marriage ceremony, and whether about the same time she made any preparations for going to housekeeping.”

Appellant by his requested instruction 5 1/2 sought to have the jury informed as follows: “I instruct you that evidence that the prosecuting witness some time after she claims that the defendant seduced her made some new clothes and quilts, and performed other acts in preparation of marriage, cannot be considered by you as corroborating or tending to corroborate the prosecuting witness that the defendant promised to marry her, and that she yielded to his solicitations because of that promise, but the corroborating testimony must come from some witness other than the prosecuting witness.”

It is earnestly contended by appellant that the court erred both in the giving of instruction No. 10 and in refusing No. 5 1/2 requested because the jury was in effect informed that a mutual promise to marry might be inferred from things done by the prosecuting witness, without the presence of knowledge of the defendant; that such evidence is merely self-serving. It is not claimed by the state that there was any evidence aside from that of the prosecuting witness that defendant had any knowledge of her preparations for a wedding.

In Graham v. Martin, 64 Ind. 567, an action for breach of promise to marry, the question here involved was decided by this court. In the course of the opinion the following language was used: “Objection is made to the following portion of the seventh charge, viz., that the jury, in deciding whether a contract of marriage existed between the parties, might consider the fact as to any preparation the plaintiff might have made for marriage,” etc.

In Russell v. Cowles, 15 Gray (Mass.) 582, 77 Am. Dec. 391, it is decided that: “In an action for breach of promise of marriage, evidence of preparations for performing the contract made by the plaintiff in the absence of the defendant, and not in any way connected with him, is inadmissible to prove the plaintiff's assent to a mutual promise of marriage.” We think this decision asserts the better law. 2 Parsons, Con. 62.

In the discussion of this subject in Elliott on Evidence, the author says in section 3149: “The conduct and statements of the parties immediately before and after and at the time of the alleged seduction may generally be shown as explanatory and as part of the res gestæ. But evidence of preparations made by the prosecutrix for marriage to the defendant is not admissible as part of the res gestæ. The contrary view seems to be taken by Mr. Underhill, but if he means to state that such evidence, and that the consultation by her with her parents regarding preparations for the wedding, can be shown against the defendant when the latter had no part therein and no knowledge thereof, the statement seems to be clearly erroneous, and it is criticized in a recent case, wherein it is held that such...

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22 practice notes
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Home Ins. Co. of New York, No. 22479.
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Abril 1915
    ...of error and points raised under it can avail appellant nothing. Robinson v. State (1912) 177 Ind. 263, 266, 97 N. E. 929;Hay v. State, 178 Ind. 478, 98 N. E. 712;Boos v. State (1914) 105 N. E. 117;Stiles v. Hasler (App. 1914) 104 N. E. 878;Combs v. Combs (App. 1914) 105 N. E. 944. [2] The ......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Abril 1914
    ...an assignment of error on appeal in a criminal case that the indictment does not state a public offense, can be of no avail. Hay v. State, 178 Ind. 478, 98 N. E. 712;Robinson v. State, 177 Ind. 263-265, 97 N. E. 929). [2] The objection made to the indictment is that it charges the commissio......
  • Cox v. State, No. 26045.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Junio 1932
    ...cannot be so questioned for the first time in this court. Robinson v. State (1912) 177 Ind. 263, 97 N. E. 929;Hay v. State (1912), 178 Ind. 478, 98 N. E. 712, Ann. Cas. 1915C, 135;Robinson v. State (1915) 184 Ind. 208, 110 N. E. 980;Scherer v. State (1917) 187 Ind. 15, 116 N. E. 52. An assi......
  • Pinkerton v. State, No. 770S142
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Junio 1972
    ...of instructions are harmless and will not be considered on appeal. Mason v. State (1908), 170 Ind. 195, 83 N.E. 613; Hay v. State (1912), 178 Ind. 478, 98 N.E. Finally, it is the defendant's contention that her admissions during the police interrogation and the results of laboratory tests m......
  • Request a trial to view additional results
22 cases
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Home Ins. Co. of New York, No. 22479.
    • United States
    • Indiana Supreme Court of Indiana
    • 13 Abril 1915
    ...of error and points raised under it can avail appellant nothing. Robinson v. State (1912) 177 Ind. 263, 266, 97 N. E. 929;Hay v. State, 178 Ind. 478, 98 N. E. 712;Boos v. State (1914) 105 N. E. 117;Stiles v. Hasler (App. 1914) 104 N. E. 878;Combs v. Combs (App. 1914) 105 N. E. 944. [2] The ......
  • Boos v. State , No. 22,548.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Abril 1914
    ...an assignment of error on appeal in a criminal case that the indictment does not state a public offense, can be of no avail. Hay v. State, 178 Ind. 478, 98 N. E. 712;Robinson v. State, 177 Ind. 263-265, 97 N. E. 929). [2] The objection made to the indictment is that it charges the commissio......
  • Cox v. State, No. 26045.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Junio 1932
    ...cannot be so questioned for the first time in this court. Robinson v. State (1912) 177 Ind. 263, 97 N. E. 929;Hay v. State (1912), 178 Ind. 478, 98 N. E. 712, Ann. Cas. 1915C, 135;Robinson v. State (1915) 184 Ind. 208, 110 N. E. 980;Scherer v. State (1917) 187 Ind. 15, 116 N. E. 52. An assi......
  • Pinkerton v. State, No. 770S142
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Junio 1972
    ...of instructions are harmless and will not be considered on appeal. Mason v. State (1908), 170 Ind. 195, 83 N.E. 613; Hay v. State (1912), 178 Ind. 478, 98 N.E. Finally, it is the defendant's contention that her admissions during the police interrogation and the results of laboratory tests m......
  • Request a trial to view additional results

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