Washington v. State, 670S139

Citation257 Ind. 40,271 N.E.2d 888
Decision Date09 August 1971
Docket NumberNo. 670S139,670S139
PartiesErnest O'Dell WASHINGTON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Gil I. Berry, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Appellant was charged on August 21, 1969, with the crime of Assault and Battery with Intent to Rape. After three continuances at the request of the appellant and one by the state, the appellant was tried on the charge on February 19, 1970, and found guilty. The appellant was sentenced to the Indiana State Prison for not less than one (1) nor more than ten (10) years.

The record shows that on November 2, 1968, the complaining witness, a female person, was walking on Meridian Street between Maryland and Georgia, in Indianapolis, Indiana. An unknown person grabbed the woman and dragged her into an alley, saying, 'If you scream I'll cut your throat.' The attacker told the woman that, in her words, 'he wanted to 'F" which the woman understood to mean that he wanted to have intercourse with her. After throwing her to the ground the attacker unzipped his pants, exposed himself tore off the woman's undergarments, and 'got on top of' her. Although no intercourse took place the attacker masturbated while on top of the woman. The woman was released and the attacker fled. The woman then proceeded to her place of employment and made a report of the incident to the police. On November 4, 1968, two days after the attack, the woman was taken to the Indianapolis Police Department to view photographs in an attempt to identify the attacker. While looking at colored slides of different subjects, the woman recognized one of the subjects to be the man who had attacked her. The police records disclosed that the subject identified by the woman was the appellant, Ernest O'Dell Washington. On July 2, 1969, the appellant went to the Indianapolis Police Department to secure some identification papers, since his had been lost. While at the police station the appellant was arrested. On July 10, 1969, the woman identified the appellant in a line-up. On August 21, 1969, an indictment was filed charging the appellant with Assault and Battery with Intent to Rape. On November 3, 1969, the appellant filed a notice of alibi. On December 4, 1969, appellant was granted his third continuance. Thereafter, on January 30, 1970, the state filed its answer to the notice of alibi. In his notice of alibi, appellant alleged that on November 2, 1968, the date of the offense, he was in jail in Chicago, Illinois. During the trial the appellant introduced in evidence a letter written to him from an employment agency in Chicago, showing that he was in their office on October 28, 1968, five days before the offense took place in Indianapolis. Also, the Prosecutor, Mr. Budnick, stipulated that a person with the name of Ernest Washington was arrested by the Chicago police and in jail on November 2, 1968, in Chicago. The stipulation made in court by Mr. Budnick is as follows:

'Mr. Budnick: Your honor, we stipulate that an arrest was made in Chicago at 11, oh, approximately about 11 or 11 * * *

'Mr. Budnick * * * and that the Chicago police report shows that an Ernest Odell Washington was arrested--Ernest Washington was arrested, and the serial number was 344--his Social Security number was 344--02--268' (Emphasis added)

The appellant testified that his Social Security number was 425--46--3268. The Chicago police report or a copy of it was not introduced. Also, the complaining witness identified the appellant in the course of her testimony at trial.

Appellant first urges that the State of Indiana failed to prove the material averments of the Indictment, in that it failed to prove 'felonious intent' on the part of appellant and also that appellant 'feloniously ravished and carnally knew' the complaining witness. First, we point out that as to the second of the above contentions, appellant has misquoted and misinterpreted the Indictment. The Indictment in part reads as follows:

'* * *, did then and there unlawfully and feloniously in a rude, insolent and angry manner, touch, beat, strike and wound one _ _, a woman then and there being, and then and there not being the wife of said ERNEST O'DELL WASHINGTON, with a felonious intent then and there and thereby unlawfully, and feloniously to ravish and carnally know her * * *'

Clearly, there was no burden on the State to prove that the appellant carnally knew her, but only that he committed the assault and battery with the intent of doing so. Second, as to the...

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45 cases
  • Stroud v. State
    • United States
    • Indiana Supreme Court
    • 15 Octubre 1971
    ... ... Washington v. State, handed down August 9, 1971, Ind., 271 N.E.2d 888; Davis v. State (1971), handed down August ... Page 846 ... 9, 1971, Ind., 271 N.E.2d ... ...
  • Hart v. State
    • United States
    • Indiana Appellate Court
    • 1 Agosto 1972
    ... ... Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind., 258 N.E.2d 407; Sharp v. State ... ...
  • Berry v. State
    • United States
    • Indiana Appellate Court
    • 3 Octubre 1972
    ... ... Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), 254 Ind. 150, 258 N.E.2d 407 ... ...
  • Riner v. State
    • United States
    • Indiana Supreme Court
    • 3 Mayo 1972
    ... ... Washington v. State (1971), Ind., 271 N.E.2d 888; Davis v. State (1971), Ind., 271 N.E.2d 893; Grimm v. State (1970), Ind.,258 N.E.2d 407; Sharp v. State ... ...
  • Request a trial to view additional results

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