White v. The State

• Decision Date: 30 January 1894
• Docket Number: 17,061
• Citation: 36 N.E. 274,136 Ind. 308
• Parties: White v. The State
• Court: Indiana Supreme Court

36 N.E. 274

136 Ind. 308

White v. The State

No. 17,061

Supreme Court of Indiana

January 30, 1894

From the Jay Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

E. E McGriff and H. T. Sipe, for appellant.

A. G Smith, Attorney-General, and R. H. Hartford, Prosecuting Attorney, for State.

OPINION

Hackney, J.

The appellant was charged, tried, and convicted of an assault and battery with intent to commit a rape. The prosecuting witness was appellant's step-daughter, and a married woman. The occurrence is claimed to have taken place in the day time, at the home of the appellant and in one of the three rooms of the first story of a house of five rooms and while two men were in a room on the second floor, his wife, a servant girl, and three children were in the kitchen, an adjoining room, her brother having just left the room and being upon the premises, and her husband's hired man within speaking distance from the house.

The appellant, his wife, the prosecutrix, and her brother had been engaged in conversation in the sitting room, and after the brother stepped out of the room, the appellant's wife started to the kitchen to assist in preparing supper, remarking, as she did so, that her husband desired to talk with his step-daughter for a few minutes. To this suggestion the prosecutrix assented, as she and the appellant became the only remaining occupants of the sitting room. He asked her to go into the bed room with him, but when she had declined, he lifted her from the chair and pushed her into the bed room. After professions of love for her and repeated protests that he did not intend to harm her, he sat down upon the bed, and soon pulled her down by his side. That which ensued can not be repeated here with proper regard for that chastity of language which should characterize the decisions of a court of justice.

The conduct of the appellant was indecent, and his proposals were lascivious, but there was nothing indicating an intention to enforce, by superior power, his lustful desires.

She permitted his conduct and entertained his proposals of intrigue with no other resistance than in saying to him: "Now you have gone far enough," and "I am going out of the room," and he did not desist, but continued to entertain her in this manner from five to fifteen minutes, and she did not leave the room, but remained until her mother called her and told her that her husband desired her to go home and prepare his supper. At this time she arose from the bed and went immediately into the presence of her mother, the servant girl and the children, and from them to her own home.

As candidly stated by the attorney-general, in his brief, "during the time she and the appellant were locked up in the bed room, and while the alleged criminal assault was being perpetrated, she did not give any alarm or outcry, nor did she fight or in any forcible manner resist the importunities of her assailant. There were no marks of violence upon her person, her clothes were not disarranged, and when she left the room she was not in any perceptible state of excitement."

To none of those who were so convenient did she make any complaint of mistreatment, and her husband did not learn of the occurrence for two weeks after the assault, and then, as the attorney-general states the evidence, "when she divulged it to an aunt in a rather accidental and gossipy manner."

During this interval of two weeks, she and the appellant continued to reside in the same immediate neighborhood, and she visited his home and met and greeted him with cordiality.

This statement of the facts rests upon the evidence for the State and does not include the evidence...