155 Ind. 112 | Ind. | 1900
— The appellant was convicted of an assault and battery upon the prosecutrix, who was a girl under the age of consent, with intent to commit rape. The questions presented by the assignment of errors, and not waived, arise under the overruling of appellant’s motion for a new trial.
It is first insisted that the conviction is not sustained by sufficient evidence, in this, that the evidence does not rise to that degree of certainty, with respect to his felonious intent, which excludes every reasonable hypothesis consistent with his innocence. There is no dispute about the law as it is clearly stated in Cavender v. State, 126 Ind. 47; but the contention is that the evidence is not so conclusive in character as to preclude a reasonable inference of innocent intent.
The evidence sufficiently proves that the prosecutrix was thirteen years of age, and lived with her grandparents, who were old and feeble. The defendant was fifty-nine years of age, of bad moral character, separated from his wife, and on two or three occasions followed after the girl as she went a short distance into the country on errands, and upon one of these occasions asked her, while she was in the presence of another girl, when he could see her. The defendant was seen at dusk in an alley near a barn on the premises where the prosecutrix lived. On July 13, 1899, he was by a neighbor seen to enter this barn and the girl soou afterward was also seen to go from the house into the barn. About ten minutes later the neighbor, who had observed them, went down the alley to the barn, and looked through a crack into the interior, but saw or heard no one. Passing on he soon returned to his house whence he had made his first observations, and in fifteen or twenty
With respect to the meeting in the stable on July 13th, the girl testified in substance as follows: “I went in at the east door of the barn to get cobs, set my basket on the ground, and while I was getting cobs out of the manger with both hands, Hanes from behind grabbed me by the left arm and said, Must wait a minute. I won’t hurt you.’ He then felt my breasts and my limbs and tried to raise my clothes and tried to throw me down. I stood with my back to him and held onto the manger. He tried to throw me down but didn’t try with very much force. He took hold of both my arms with both his hands but I held onto the manger. He then let loose of one hand and took hold of my clothes 'at the side and raised them a little above my knees, and I just kind of pulled them down. He kind of hurt me when he grabbed my arm. He kind of put his face to mine and said four or five times he would not hurt me and told me I was the sweetest little girl in town and to wait a minute. I don’t remember anything else he said and I jerked away from him and went into the house. There was nobody at the house but my grandpa- and I did not tell him what had happened and I didn’t tell my grandmother until after Hanes was arrested”, which was on July 17th.
Intent is a mental function, and, where not consummated, it is impossible to know with absolute certainty what was operating in the actor’s mind, and in such cases it must be arrived at by courts and juries from a consideration of the conduct and the natural and usual sequence to which such conduct logically and reasonably points. Appellant’s counsel does not inform its of any intent of his client that appears consistent with his innocence. It is, however, contended that the fact that he did not accomplish, sexual intercourse, or employ greater force, should be accepted as sufficient evidence that he did not intend it. This contention by no means reaches the question. We think it is apparent that he did not intend to subject the prosecuting witness to his will by force, but if his purpose was to gain her voluntary submission by a course of lascivious conduct towards her, he was none the less guilty. The evidence is that she pulled away from him and went to the house. That he did not employ his power to hold her and coerce her as he might is not inconsistent with a design to win her by lustful blandishments, and that he failed in the latter course by no means disproves his criminal intent, or of itself raises a reasonable doubt. The girl had no power to consent, and her voluntary submission to him would have been as much his crime as her forceable subjection.
The tenth and eleventh instructions given to the jury are complained of. By the eleventh, the court, in substance, advised the jury that if, after considering all the evidence, they should be satisfied that the defendant did actually have intercourse with the prosecuting witness on the occasion upon which the State claims the crime took place, the State’s case would be made out; that it would not defeat the State’s case that the jury should be satisfied that the crime actually took place, because included in the crime of rape is the crime of assault and battery with intent to commit a rape. The tenth instruction is to the same effect. That the law is correctly stated in these instructions, see Polson v. State, 137 Ind. 519.
But it is insisted that the instructions were erroneous because of the entire absence of evidence that the defendant had sexual intercourse with the girl. Instructions
But we are unable to grant that there was no evidence before the jury tending to prove sexual intercourse. There was no direct evidence of that fact and a positive denial by appellant and evidence equivalent to a denial by the prosecuting witness. But the State was not bound by the testimony of the prosecutrix. While the State could not impeach its own witness, nor contradict her by other witnesses for the purpose of discrediting her testimony, yet it was undoubtedly competent for the State to prove by other evidence the existence of a fact denied by its' witness, even though such other evidence had the effect of discrediting the witness. Rapalje on Witnesses, §214; 1 Greenleaf on Ev. (13th ed.), §443; Rockwood v. Poundstone, 38 Ill. 199; Thorn v. Moore, 21 Iowa 285, 290; Cronan v. Roberts, 65 Ga. 678; Brown v. Osgood, 25 Me. 505, 510; Brolley v. Lapham, 79 Mass. 294, 297; Olmstead v. Bank, 32 Conn. 278, 287; Brown v. Wood, 19 Mo. 475; Seavy v. Dearborn, 19 N. H. 351, 355; Skellinger v. Howell, 8 N. J. L. 383; Thompson v. Blanchard, 4 N. Y. 303, 311; Hunter v. Wetsell, 84 N. Y. 549, 556.
Here the evidence tended to show that the defendant had for several days been following the girl about as if his purposes were meeting with encouragement. lie was of lecherous disposition as shown from his own testimony. The jury had a right to believe that the meeting of the two at the barn on the 13th and 17th of July was by appointment, and the right further to believe that they remained together undisturbed in the mow of the barn for fifteen or twenty
Complaint is also made of instruction thirteen. By it the court informed the jury in substance that the law justified them in concluding that a man intends the natural and reasonable consequences of his own acts. However, it was solely a question for them to say whether or not an intention to do a particular thing is proper to be drawn from a particular act shown, and if they should be satisfied from the evidence, beyond a reasonable doubt, that the defendant did take hold of the prosecuting witness, it was for them to say whether or not, under all the circumstances, the intention to have intercourse with the girl was then in his mind, and that it was with that purpose and with that intention in his mind that he laid his hands upon her, remembering all the time that they were the judges of the fact; that it was for them to say whether or not that fact did exist in the case; and that it was for them to say, if it did exist, what the proper inference to be drawn from it was, remembering all the time that all reasonable doubts arising in the case were to be resolved in favor of the defendant.
We are unable to see any infirmity in this instruction of which appellant can complain. It very clearly advised the jury that, 'whether an inference to do a particular thing may be properly drawn from a particular act shown was solely a question for them to determine, and if they found, beyond a reasonable doubt, that the defendant laid hands upon the girl, it was then for them to say, from all the circumstances, whether the intent to have intercourse with the girl was then in his mind, that is, when he laid hands upon her, and whether it was with that purpose and with that
Appellant also challenges that part of the tenth instruction which follows: “And if the State has satisfied you beyond a ^reasonable doubt that the defendant either had sexual intercourse with this prosecuting witness, or that he laid his hands upon her with the intent and purpose of having sexual intercourse with her, and that she was under fourteen years of age, they have made out a case.” The point of insistence is that, “there can be no assault and battery where it is perpetrated with the consent of the person assaulted.”
Section 1990 Burns 1894, §1917 Horner 1897, reads as follows: “Whoever unlawfully has carnal knowledge of a woman foreeably against her will, or a female child under fourteen years of age, is guilty of rape, and upon conviction thereof,” etc. When perpetrated against a female child under fourteen years of age, consent or nonconsent forms no element of the crime. The crime is the same whether committed foreeably and against the will or with the voluntary submission of the child. In either case it is a felony. Furthermore, any touching of the person of a female child under the age of fourteen years, with intent to perpetrate upon her the act of sexual intercourse, is, and necessarily must be, in legal contemplation, without her consent, for she can give no consent that will make the act lawful. Hence any indecent liberties taken of the person of the child, in the prosecution of that intent and purpose, is unlawful, and rude and insolent, to say the least of it, and clearly within the definition of assault and battery.
This court has heretofore decided this question adversely to appellant in Murphy v. State, 120 Ind. 115, and with the ruling in that case we are fully content. We find no error in the record.
Judgment affirmed.