173 Ind. 296 | Ind. | 1910
Appellant was convicted of the crime of rape upon a child under fourteen years of age, and has assigned as errors the overruling of (1) his motion to quash the affidavit; (2) his request for leave to withdraw his plea of not guilty; for the purpose of filing an answer in abatement, (3) his motion for a new trial, and (4) his motion in arrest of judgment.
This prosecution was founded upon section 361 of the act of 1905 concerning public offenses (Acts 1905, p. 62, §2004 Burns 1905). This section was amended by the act of February 26, 1907 (Acts 1907, p. 85, §2250 Burns 1908) ; and in support of the motion to quash, it is contended that the amendatory act repealed the former statute by implication, and contained no saving clause, hence this prosecution cannot be maintained. The amending act of 1907 is in the exact language of the original statute, except that the age of consent is made sixteen years instead of fourteen years, and in the proviso life imprisonment is ira
If the legislative purpose to preserve the substance of the former statute were not plain, as shown, but were doubtful, the general statute of March 13, 1877 (Acts 1877 [s.s.] p. 73, §248 Burns 1908, §248 R. S. 1881), declarative of the continuing policy of the State, that the repeal of any statute shall not have the effect to release or extinguish any penalty or liability incurred under such statute unless the repealing act expressly so provide, would be sufficient to uphold this prosecution. State v. Hardman (1896), 16 Ind. App. 357; Commonwealth v. Duff (1888), 87 Ky. 586, 9 S. W. 816; People v. McNulty (1892), 93 Cal. 427, 26 Pac. 597, 29 Pac. 61; Jordan v. State (1869), 38
Appellant pleaded not guilty to the charge, and the trial proceeded until all the evidence in behalf of the State had been introduced, whereupon leave was asked to withdraw the general plea for the purpose of filing an answer in abatement. This request was denied, and this ruling was made a ground for a new trial. Assuming that the court upon a proper showing had authority to grant appellant’s request, still in this ease no excuse whatever is made to appear why the proposed plea was not filed at the proper time. Pleas in abatement are not favored, and except where statutes prescribe a different rule of practice they must precede pleas in bar. Pointer v. State (1883), 89 Ind. 255; Cooper v. State (1889), 120 Ind. 377. It would manifestly be an intolerable practice to permit a defendant to plead to the merits and remain silent until all the evidence against him had been heard, and then, upon his mere request, have the trial arrested, the submission set aside and his plea of not guilty withdrawn, in order to file a plea in abatement. If a trial court may under any circumstances exercise the extraordinary power invoked in this connection, a question which we need not and do not decide, it must at most be a discretionary power whose exercise can only be justified upon a clear and strong showing that injustice would otherwise result. No showing whatever was made in this case, and certainly no abuse of judicial discretion, if any rested with the court, appears.
Appellant’s counsel asked the prosecuting witness, on cross-examination, whether at a time stated she had told her father of her illicit relations with other young men, and whether she had not filed affidavits against other young men named. It is argued that the evidence sought by these questions tended to prove the unchastity of the prosecutrix, and to exhibit her depraved and immoral nature. The charge in this case did not involve the prose
The court refused to allow the father of the prosecuting witness to state whether he had filed an affidavit against a certain young man and caused his arrest on a charge similar to that preferred against appellant, and also refused to admit in evidence affidavits made by the prosecuting witness charging certain young men with like offenses. These matters were all manifestly improper and irrelevant, and the court very properly excluded them. The only pertinent inquiry was whether appellant committed the offense charged, and not whether other men were or were not guilty of like offenses upon the same person.
It is alleged in the motion for a new trial that the prosecuting attorney in the closing argument misquoted the language of appellant’s counsel, and wrongfully stated' to the jury “that he would not do as counsel for defendant had done, and would not tell the jury that if they did not find the defendant not guilty that he would send them to the asylum or call them grasshoppers.” The record, outside the motion for a new trial, does not show that such an incident as that relied on occurred. Matters of this character cannot be shown by mere recitals in the motion for a new trial, but must be brought into the record by a bill of exceptions. Siberry v. State (1896), 149 Ind. 684; Reed v. State (1897), 147 Ind. 41; Masterson v. State (1896), 144 Ind. 240, 245; Robb v. State (1896), 144 Ind. 569; Kleespies v. State (1886), 106 Ind. 383.
Counsel for appellant earnestly insist that errors were committed in the giving and refusing to give numerous instructions. The Attorney-General calls attention to the fact that the instructions have not been brought into the record by a bill of exceptions, and hence are not before the court for consideration. This objection is well taken, and we are precluded from considering any question relating to giving or refusing to give instructions. Curless v. State (1909), 172 Ind. 257; Ludwig v. State (1908), 170 Ind. 648; Williams v. State (1908), 170 Ind. 642; Donovan v. State (1908), 170 Ind. 123.
It is finally insisted that the evidence is insufficient to sustain the verdict. The prosecuting witness was fourteen years of age on August 1, 1907, and appellant was twenty-six years old in May of the same year, and for many years they lived on adjoining farms. The girl testified that he had been having sexual intercourse with her ever since she was nine or ten years of age, at her home in Dubois county, and that the last sexual act between them was about a year before her father left the farm and moved to town, which removal was in October, 1907. Appellant testified that on May 1, 1906, he went to Champaign, Illinois, and remained there continuously until February, 1907; that he had never had sexual relations with the girl previous to his going away, but that he did have such intercourse with her in August or September, 1907; that at the time she told him she was fifteen years old, and he believed that to be her age; that he had known her since she was born. It is clear that this evidence was sufficient to authorize the jury to re
The judgment is affirmed.