194 Ind. 469 | Ind. | 1924
Appellant was convicted of the crime of sodomy. Ovérruling his motion for a new trial is assigned as error, under which assignment, he complains of the admission of certain evidence, and insists that the verdict is not sustained by sufficient evidence.
The affidavit was sworn to on March 17, 1923, and charged the commission of the alleged offense “on or about the 7th day of March, 1923”, and the cause was tried by the court, without a jury, on April 3, following. The prosecuting witness testified that he first met defendant (appellant) “before September, 1922”, that the crime was perpetrated upon him by defendant in the presence of other boys, among whom were F. B. and D. S., at a designated 'place in the woods.to which he said they went with defendant, at a time when he said defendant gave them cigarettes and gave him a dollar, and when defendant had an overcoat with him, on which they lay down; that this happened three or four times; that the second time
The prosecuting witness testified, without objection, that while they were over there in, the woods together, defendant “mistreated us”, and having repeated the statement that he “mistreated me”, told exactly what defendant did in committing the alleged crime at that time, and stated that the other boys were only a few feet away at the time, and .that at the second, third and fourth times when the act was repeated, defendant had met him and the others by ap
In State v. Place, supra, which was a prosecution for an alleged assault upon a passenger in a moving train, with the intent to commit sodomy, evidence that about two hours earlier, the same evening, defendant had committed a like assault upon another passenger on the
In State v. Desmond, supra, in a prosecution for assault with intent to rape, alleged to have been committed upon a little girl, behind a curtain in a room where she had attended a public entertainment given by the defendant that afternoon, evidence that, at the close of the entertainment, defendant had given tickets to her and two other girls and asked them to stay until the audience left, and that he had taken each of the other girls, in turn, behind the curtain in the half hour or more that the prosecuting witness waited before she was called in, and had asked the first girl to lie down on the, floor behind the curtain, and had induced the second to lie on the floor, when he had sexual intercourse with her, was held to be competent. In State v. Hummer, supra, which was a prosecution for carnal abuse of a female child under the age of consent, after the defendant had shown, by cross-examination of the chief of police, that the statement of the prosecuting
In Harmon v. Territory, supra, the defendant was on trial for rape committed by him and two others upon a girl eighteen years old who had recently immigrated from Holland. She and her sister, four years older, testified that they were in a dance hall with their uncle when some men pushed the uncle out of the door, locking it behind him, and then forced the prosecuting witness into an adjoining room, where she was violated by the defendant and two other men. Witnesses for the defendant testified that she and her sister both submitted willingly to the embraces of men that evening, but quarreled with a man over the amount of money they should receive. The sister was permitted to testify that at the same time when the prosecuting witness was forced into an adjoining room by the three men, she was herself dragged to a room upstairs by two other men, and that they kept her there and each forcibly violated her while she could hear the prosecuting witness crying out and calling to her for help; the court instructing the jury that what other men did to the sister was not proof that defendant was guilty of the offense charged, but that the evidence was admitted for the purpose of explaining the conduct of the sister in failing to go to the rescue of the prosecuting witness. The Supreme Court of Oklahoma held that the evidence was properly admitted, and intimated an opinion that by its instruction the court had limited its application to a narrower compass than would have been justified under the circumstances.
In Proper v. State, supra, the defendant was convicted of assault with intent to rape a ten year old girl that he had taken into his family with the declared
And in People v. Fultz (1895), 109 Cal. 258, 41 Pac. 1040, which was a prosecution for rape of the defend
In.the case at bar, the testimony that the offense was •committed in the presence of other boys who witnessed all the revolting retails, and who shared the cigarettes and “white mule” distributed by the defendant, but that they did not tell what they had seen until long afterward, and until the prosecuting witness had “got it”, and had discovered that defendant had “hurt him”, and told his mother about it, would. seem almost impossible of belief without the explanation that they had a share in the shame they were concealing. These boys were shown to have been present, sharing with the prosecuting witness what defendant gave them to induce the commission of. the crime, not only once but four times in succession. And we think that the evidence in question was competent for the purpose of explaining their passive participation and their silence, and to rebut an inference that the story they told was too improbable to be true. And being admissible for a proper purpose, we must assume. that the trial judge who heard the evidence limited its effect to the purpose for which it was competent. ■
The judgment is /affirmed!.
Willoughby, J., absent. '.