Yessen v. State, 28601

• Decision Date: 24 May 1950
• Docket Number: No. 28601,28601
• Citation: 92 N.E.2d 621,228 Ind. 316
• Parties: YESSEN v. STATE
• Court: Indiana Supreme Court

Page 621

92 N.E.2d 621

228 Ind. 316

YESSEN v. STATE

No. 28601.

Supreme Court of Indiana.

May 24, 1950.

Louis E. Kunkel, Michigan City, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Walter O. Lewis, Deputy Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by affidavit with rape, under § 10-4201, Burns' 1942 Replacement. He waived a trial by jury, and the cause was submitted to the court on a plea of not guilty. Finding and judgment were entered against appellant and sentence followed.

The only error claimed by appellant is the overruling of his motion for a new trial.

Appellant contends that the finding of the court is contrary to law and is not sustained by sufficient evidence.

The testimony of Lois Ann Warner, being first questioned by the court for competency, showed that she was twelve years of age and was in Grade 4-B of school, that she understood the penalty for telling a falsehood or a lie, that it was an offense under her religion and the law to tell an untruth, and that in taking the oath to tell the truth she understood she was to tell nothing but the truth. Appellant desired no further examination, and had no objection to the competency of the witness to testify.

Her testimony on examination further showed that she resided in Michigan City with Paul Owens and his wife; that she was twelve years of age; that she first met appellant in April, 1948, and that they had a conversation; that she met him later in the summer at the park, and, between first seeing him and meeting him in the park, she had seen appellant about five other times; that a couple of times he asked her to go down to the part to meet him; that on one occasion when she met him in the park she had been swimming, was alone, and had agreed to meet appellant by the bandstand; that the meeting took place about 6:30 o'clock in the evening, before dark, and there were not many people around; that appellant took her near the bath house, down by the lake, and had intercourse with her; that this happened on September 23, 1948, and appellant then gave her some money, and when he gave her the money he told her not to tell anybody about what happened; that she then went home alone, and when she arrived home it was dark; that at a later time she met appellant by the pond in the park, and, in her own words, 'He tried something'; that this happened in the daytime, while they were sitting on one of the benches, and there were trees and shrubs around; that he tried to do the same thing that happened on the beach, but had to stop because some people were coming; that he then gave her a quarter and a half dollar; that she never had anything to do with any other man or little boys.

The testimony of Paul Owens showed that he and his wife had the custody of Lois Ann Warner, and on September 24, 1948, he signed an affidavit against appellant charging him with the rape of Lois Ann Warner; that on September 23d she left home about 6:00 p. m., and was supposed to be back at 7:00 p. m.; that at that time it was getting dusk; that about 7:00 p. m. he and a police officer started looking for Lois Ann Warner, and found her about 7:30 p. m., and it was dark; that she had several girl friends whom she visited in the neighborhood, and that appellant goes to the same house; that she was not allowed to go to the park in the evening.

The evidence of Frank Cowgill, a police officer, shows that when he and Paul Owens stopped Lois Ann Warner on the street, they then looked for appellant, found him, and, in his presence, Lois Ann Warner said he was the man, and she identified him; that he refused to answer any questions; that the police officer took some money from Lois Ann Warner which she had on her person.

There was further testimony that on several occasions appellant was seen with Lois Ann Warner, and on one of these occasions was headed toward the park; that the police were notified of this; that these meetings would take place about dusk; that prior to the trial a doctor examined Lois Ann Warner and found that the entire hymen was broken, and could have been caused by attempted intercourse or intercourse.

From the above testimony there is substantial evidence of probative value sufficient to sustain the court's finding on each material element of the crime charged. Inman v. State, 1945, 223 Ind. 500, 62 N.E.2d 627; White v. State, 1941, 219 Ind. 290, 37 N.E.2d 937; Mack v. State, 1936, 210 Ind. 336, 1 N.E.2d 595.

Appellant further contends that error was committed in the overruling of the motion for a new trial on the ground of newly discovered evidence. The affidavits setting out the newly discovered evidence on which appellant based his contention for a new trial are not in the bill of exceptions, and therefore raise no question for this court. Garner v. State, Ind.Sup.1949, 86 N.E.2d 675; Hoy v. State, 1947, 225 Ind. 428, 75 N.E.2d 915; Butler et al. v. State, 1945, 223 Ind. 260, 60 N.E.2d 137; Bowling v. State, 1942, 220 Ind. 497, 44 N.E.2d 171; Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018; Kleespies v. State, 1886, 106 Ind. 383, 7 N.E. 186.

See Bolton v. State, 1945, 223 Ind. 308 311, 60 N.E.2d 742, 158 A.L.R. 1057, for discussion of recantation of testimony.

There being no reversible error, the judgment is affirmed.

EMMERT, C. J., and GILKISON, J., dissent.

GILKISON, Judge (dissenting).

I am unable to agree with the majority opinion for the following reasons.

Appellant was prosecuted in the court below by affidavit charging him with the statutory rape of a girl named Lois Warner. He entered a plea of not guilty, waived a jury and on March 9, 1949 was tried by the court, resulting in a finding and judgment of guilty, imprisonment in the Indiana State Prison not less than two nor more than twenty-one years and that he pay the costs.

The motion for new trial filed on March 30, 1949 is for the reasons: (1) That the finding is not sustained by sufficient evidence, (2) That it is contrary to law, and (3) 'For newly discovered evidence material for and to defendant, which he could not, with reasonable diligence, have discovered and produced at the trial, the particulars whereof will fully appear in the affidavits of Paul Owens, Marcella Owens, and Lois Warner, attached to and made a part hereof, to which defendant here now makes reference.'

With respect to the first and second reasons for the motion for new trial, the evidence most favorable to the state shows that the child was past twelve years of age. Her parents had deserted her and she was a ward of the welfare Department of LaPorte County. That department had employed Mr. and Mrs. Paul Owens of Michigan City to room, board, care for, and send her to school. She was in grade 4-B.

The only evidence against the appellant was by this child. The statement of her evidence in the opinion is more positive than the record supports. Her testimony was to the effect that she first met defendant in April, 1948, and she met him the next time 'a week and a day later' 'down by the park.' That she saw him about five times between the time she first saw him and the time she met him at the park, but they had not talked at any of such times. Then as before giving 'yes and no' answers to leading questions asked by the prosecuting attorney, she admitted defendant asked her to meet him at the park and she met him down by the bandstand in the evening before dark. They went down to the beach by the bath-house near the lake. After more questioning she said: 'He took intercourse with me.' She saw two other people there. These two other people were not called as witnesses by the state. She did not remember the date when it occurred. But when asked if it was September 23, she said 'yes'. She gave no reason for changing the date from 'a week and a day' after she first met him in April, to September 23, more than four and a half months later. She said she went home from the park, arriving home about seven o'clock daylight saving time.

Under the leadership of the prosecuting attorney she then testified, that one day after that in the fall by accident she met the defendant down by the pond in the park. It was daytime and they sat on a bench. He fondled her, kissed her, 'tried something but did not get very far', and gave her some money. She said after that 'he used to walk past our house and then go follow us to school.' This evidence is mentioned in the opinion as supporting the contention of the state that a crime had been committed.

However, the evidence shows that appellant was arrested about 9 o'clock P.M. September 23, 1948, by the Michigan City Police, and the intrinsic record, purporting absolute verity conclusively shows that he was arrested on the warrant issued in this case on the next day, September 24, 1948, and in default of bail was that day confined in the LaPorte County Jail; that on February 5, 1949, more than four months later he was released on bail bond. Thus it appears the girl's entire story concerning things occurring with the defendant in the fall after September 23, 1948, is necessarily imaginary, and wholly unture.

The only evidence that the alleged rape was ever committed came from the girl and is in the words noted above. Part of her story is completely refuted by the physical fact conclusively shown by the intrinsic record, that the defendant was in the LaPorte County jail when the facts testified to by her must have occurred, if at all. As to the remainder of her story upon which the corpus delicti must stand or fall it must be noted that the little girl fixed the date when the alleged crime was committed as 'a week and a day' after she first met the defendant in April, 1948. So it could not have been later than May 8, 1948. That she changed the date to September 23, at the suggestion of the prosecutor, indicates how unstable, wavering, imaginary, and inconstant her statements are, how readily she changes them to...