139 Ind. 531 | Ind. | 1894
This was a prosecution begun in the Grant Circuit Court, by the State of Indiana against the appellant, Mack Felton, by indictment, charging him with the commission of the crime of rape at said county, on the 10th day of September, 1893, upon the person of one Mollie Terrell.
Upon a plea of not guilty the cause was submitted to a jury for a trial in the court below,' who found a verdict 'against the appellant, finding him guilty of the crime of rape, as charged in the indictment, and assessing his punishment at imprisonment in the State prison' for five years. There was a judgment upon this verdict. Before the rendition of the judgment thereon, the appellant moved the court for a new trial, which motion was overruled, and to this ruling he properly saved an exception. From this judgment he prosecutes an appeal and assigns
Under the causes specified for a new trial, it is earnestly urged by the learned counsel for the appellant, that the evidence is entirely insufficient to sustain the conviction of the crime of rape, and that the verdict of the jury is, therefore, contrary to, and not sustained by, the evidence, and is, consequently, contrary to law.
The rule has long been settled in this court that in criminal as well as civil causes verdicts will not be disturbed merely on the weight of the evidence. When the evidence tends to sustain the verdict on every material point the court will not reverse the conclusion reached by the trial court and jury. McCarty v. State, 127 Ind. 223 (224).
It is only where there is an absolute failure of the evidence to sustain the finding or verdict on some material point that this court will interfere on that ground alone. Murphy v. State, 97 Ind. 579 (582); Ard v. State, 114 Ind. 542; Wachstetter v. State, 99 Ind. 290; Hudson v. State, 107 Ind. 372; Ritter v. State, 111 Ind. 324; Trout v. State, 111 Ind. 499; Kleespies v. State, 106 Ind. 383; Dolke v. State, 99 Ind. 229; Clayton v. State, 100 Ind. 201; Garrett v. State, 109 Ind. 527.
It is insisted:
First. That there is no evidence that the defendant accomplished his purpose by means of force either used or threatened. '
Second. That the woman injured did not resist to the extent of her ability.
These two propositions are so closely related to each other that we may consider them together. A careful perusal of the evidence, as it appears in the record, bearing upon the question of force used by the appellant, and of resistance by her, reveals the fact that until the time
After the defendant had accomplished his purpose, she attempted to get up, and he said: “By G-d, you lay still and let them have something to do with you,” and she was thus compelled to remain prostrate until she also submitted to the lascivious embraces of his two confederates. When they had gratified their carnal desires, they placed her in the carriage and took her to a lumber yard where she was deserted and remained in fear during the residue of the night. In the morning, at about 5 o’clock, she appeared at a restaurant and called for a sandwich and a cup of coffee; complained of the headache and of the outrage that had been committed upon her, and was weeping at the time. She repeated her complaints to the coroner, to a policeman, and to the family with whom she was left for care and attention, and caused this prosecution to be instituted against the defendant for his crime.
It also appears, that she was sick for five weeks after the transaction, thus indicating that she had suffered a severe mental and physical shock on account of the appellant’s revolting conduct.
In addition to all this, it is shown by the record, that very soon after he started from the depot he caught her by the leg and made an indecent and insulting proposal to her, and told her of his design; that she begged him to have nothing to do with her, and to let her go, and cried constantly because of the indignities heaped upon her and for fear they would take her life. She was a small woman, in the presence of three able-bodied men, and doubtless appi'ehended great bodily harm from her assailants, who were abducting her from the city limits; although appellant said, at the time, that he had no intention of harming her. A declaration like this was not
It is insisted, by appellant’s counsel, that the crime in this ease is not proven, because the woman made no outcry. But it will be borne in mind that she was a person small in stature, away from home, in the hands of strangers, and in fear of great violence; that she saw no one to whom she could appeal for relief after they left the depot on the way to the woods where the act was perpetrated; and as the deed was committed in a grove at the edge of town, where there were no immediate habitations, a cry of distress would have been of little avail. Besides, in the terror of her situation, she may have thought the defendant would kill her before assistance could come if she made an outcry. Aside from this, an examination of the evidence satisfies us that she is not a person of ordinary intelligence, and she probably acted from the appearances as they at the time presented themselves to her mind. In the peril of her situation, surrounded by the influences that environed her, the courts can not split hairs in measuring the degree of resistance she was capable of making.
It is the theory of the State, fairly supported by the evidence, that the mind of the prosecuting witness was so overcome by the language and conduct of defendant and his two associates, and the surroundings, that she was unable to do more than was done to resist the assault, and hence the act of sexual intercourse was forcible and against her will.' “The nature and extent of the
In the case at bar, if the act of intercourse had been with the consent of the woman, it seems strange that the defendant discharged her at the lumber yard, an out of the way place, instead of taking her to the hotel as he promised to do. This of itself may have been a circumstance that had some weight with the jury in determining the question of the defendant’s guilt.
It is not the law of this State that a woman assaulted with intent to commit a rape upon her is expected “to bite, if she has teeth; to kick, if she has feet; to scream, if she has a mouth; and to generally resist by all other violent means within her power.” Such an instruction, in substance, was asked by the defendant in Anderson v. State, supra, and this court said: “The court had already' instructed the jury that it was incumbent upon the State to show that the prosecuting witness had resisted with all the means within her power, and that was as far as the court was required to go under our decided cases, and others of recognized authority in this State.”
In Ledley v. State, supra, the court said: “On the subject of resistance, a recent writer says, that if resistance is overcome by physical force, or her will overpowered by fear of death, or by duress, the crime is complete, though she ceased all resistance before the act itself was finally consummated. She parts with her virtu® as a traveler with a pistol at his breast parts with his
The case of Eberhart v. State, 134 Ind. 651 (654), cites Bishop on Grim. Law as follows: “Some of the cases, both old and modern, are quite too favorable to the ravishers of female virtue, and ought not to be followed, on this question of resistance. * * * The better judicial doctrine requires only that the case shall be one in which the woman ‘did not consent.’ Her resistance must not be mere pretense, but in good faith.”
In Huber v. State, 126 Ind. 185, the court held that “The rule does not require that the woman shall do more than her age, strength, and the attendant circumstances make it reasonable for her to do in order to manifest her opposition.” The better rule is that it is not necessary that a woman should use all the physical force she has in resistance, but it must be real, and must have been overcome by the force of the defendant. State v. Shields, 45 Conn. 256; Commonwealth v. McDonald, supra.
Under one of the causes assigned for a new trial, the appellant calls in question the action of the trial court in giving to the jury, of its own motion, instruction number four, as follows: “If you find from the evidence in this case that an act of sexual intercouse did take place between the defendant and prosecuting witness, Mollie Terrell, as averred in the indictment, the question whether or not the prosecuting witness voluntarily consented to such act is a question of fact for you to determine from the evidence in the case. The defendant,
This instruction is in the exact language of an instruction given and approved, by this court in the case of Anderson v. State, supra, except that in the case at bar the words “by an array of physical force” are injected into it, and it is objected that there is no evidence to which the expression was applicable, and that it was calculated to mislead the jury.
Without again attempting to give a recital of the transaction as it occurred, we are of the opinion that the hypothesis submitted to the jury by this instruction was fairly applicable to the evidence. It will be observed that the court does not undertake to say what has been proven by either the State or the defense. The jury'were left free to determine from the evidence which, if either, is sight.
Complaint is also made of the action of the court in giving instruction number 5, as follows: “On the subject of consent, the court instructs you that a consent induced by fear of personal violence is no consent, and, though a man lay no hands on a woman, yet, if by an array of physical force he so overpowers her mind that she does not resist,'he is guilty of rape by having the unlawful intercourse.”
Plere, again, it is contended that the instruction introduces into the case the element of “physical force,” which had no existence in fact. It is not necessary to enlarge upon what we have heretofore said. This statement of the law is found in 2 Bish. on Crim. Law, section 1122, and is applicable to the evidence in the case.
Counsel further complain of the refusal of the court to give instruction number 9M, requested by appellant. This is a somewhat lengthy instruction, but we think it is not a correct statement of the facts as shown by the evidence. It omits to state, or in any way refer to the fact of fear or apprehension of harm on the part of the prosecuting witness. The subjective condition of the injured party is totally ignored in the instruction.
In Barker v. State, 48 Ind. 163 (167), this court said: “Instructions should be predicated on the whole evidence, and when they have a tendency to restrict the consideration of the jury to isolated facts, to the .exclusion of other facts which are before them in evidence, it is not only a misdirection, but an infringement on the province of the triors of the fact.”
Further the instruction closes by saying, in substance, if she submitted to the act of intercourse by defendant
Counsel complain of the refusal of the court to give instruction number 7 asked by the defendant, upon the subject of want of consent.
But in instruction number 1, asked by the appellant and given by the court, this language occurs: "Rape is the carnal knowledge of a woman without her consent.”
In a subdivision of instruction 3, this language occurs: "That said carnal knowledge of said Mollie Terrell was not only obtained by force and threats, but without the consent, and against the will of said Mollie Terrell.”
In instruction number 4, asked by the appellant, is the following language: "You must be satisfied from the evidence, beyond a reasonable doubt, that he had carnal knowledge of said Mollie Terrell forcibly and against her will.”
The fifth instruction, asked by appellant, told the jury in substance that if she consented to the act of intercourse, it would not be rape. The idea of want of consent being an essential element in the offense charged, is brought before the jury prominently, in most of the instructions given in the cause, so that they were fully advised upon the question, and knew it to be an ingredient of the crime.
There is nothing in the omission of the court to instruct the jury, upon the failure of the defendant to tes
We find no error in the record for which the judgment should be reversed.
Judgment affirmed.