*1 pending appeal, receiver would be incumbent it post satisfy bond sufficient parties claim of creditors or other interested litigation. might impose impossible This burden Upon involved, especially if it were business already laboring under financial difficulties. On hand, permitted other if the receiver is to remain appeal, pending control of the he would business ordinarily, present practice, responsible be made accounting proper for more than for his trans- be, ordinarily not, actions as receiver. He could is for sustained made accountable losses business usurpation by receiver, reason its even though ultimately determined was no there Furthermore, period appointment. cause such for required of time determination of the issue that, though appeal such even the owner prevailed appeal, in his the business without business management might experienced well have the owner’s irreparable loss. suffered Reported 421. in 189 N. E. 2d
Note. — of Indiana.
Ritchie v. State 30,138. April 17, 1963.] Filed [No. *2 Wiebe, Wayne, appellant.
Richard C. Ver for Fort Steers, Attorney General, Edwin K. and Carl E. Dorn, General, Deputy Attorney appellee. Van charged by affi- J. —The Arterburn, Dees, in one count with one davit Christine age years. a female child Of The offense alleged July, place day 28th have taken on the jury, i960. trial was without guilty life found and sentenced to defendant was imprisonment. overruling assignment sole of error of a *3 upon items that the
motion for new based the finding contrary and the is to law is not of argument by The re- evidence. sustained sufficient no that sub- there is itself into the contention solves penetration the crime evidence of stantial the rape. of type problem of this evidentiary in cases raised difficulty for always of
has been one considerable age victim of tender when involves a courts vocabulary or who, of of lack either because necessary knowledge facts the lack of adequately to intercourse, unable rape or sexual The delicacies present upon such an issue. evidence witnesses, of the the occasion sensitivities and the ambiguous language and in uncertain which result however, should place, describing exactly took what the law protection which outweigh the or obscure not proved be requiring that he gives a defendant guilty beyond by a reasonable doubt substantial evidence.
We need not in detail the recount distasteful evi say- dence in testimony case. this Suffice it to that immediately is uncontradicted that after alleged clothing attack body alleged corroborating victim had no marks physician sexual act intercourse. A testi the-prosecutrix’s fied that he found some irritation of hymen ruptured. labia was that not There sperm girl’s no body. blood about admitted in his statements had that he girl fingers, girl fondled little with his which the corroborates her statement and which ac would count for organs, certain irritations about female according physician. to the We do intend not to there hymen create rup an inference that must rape, tured to constitute but rather that such a fact prosecutrix’s testimony be considered with the referring she “didn’t know” what she meant testimony given by certain her in on chief the element penetration. Such is the evidence the issue of say penetration. testimony We cannot such substantial such clear and an essential element of the crime. Riggs 499, 503, v. Ind. 135 N. E.
2d said: “Although we are unmindful rea- nature of there is son details age speak for a of such reticence child natural detail, still the out in should delicacies situation *4 outweigh permitted to be not fact liberty reputable is at stake. life a man’s price a consequential embarrassment is small showing pay of witnesses’ in return for understanding of which such con- the details properly improperly or may be based. clusion competent give A of 12 her child is con not showing clusion of ‘sexual without intercourse’ understanding supporting her such details conclusion, at same time a more mature while knowledge
person
more
with
matters
such
might
qualified.
be
Flinn v. State
188 Ind.
531,
Appellant’s counsel, concedes sufficient evidence to convict there battery com- with assault intent pleted must, likewise, rape. reach crime of We same conclusion. authority where, evidence have the
We the accused should found as jury, adjudged guilty of a included been have reducing of included to that the lesser the conviction (sex) (Burns’ battery intent assault and with fense of §10-403). may thus be A avoided. new provides:
Bums’ §9-2321 appeal to trial on “Power —Remand reverse, modify appeal, the court On court. may, judgment appealed from, and or affirm the necessary a new trial. proper, order if to the be at remanded case, once cause must opin instructions, court, proper and the trial ion of immediately certi also shall the court court.” the trial fied to impres Although question here one of first have, heretofore, appeal cor state, we in this sion ordering sentence without erroneous rected 2-40B; Mann Supreme Rule Court new trial. 283; 491, 186 N. E. (1933), 205 Ind. v. *5 619 (1942), Marks v. 9, ; State 220 40 Ind. N. E. 2d 108 Dowd, Shoemaker (1953), v. 602, Warden 232 115 Ind. 443;
N.
Kennedy
E. 2d
(1878),
v. The State
5 2d, Appeal Am. Error, §938, p. Jur. 365 states: reviewing “Under some court, statutes the in a proper case, may modify viction below and affirm it as a conviction of a judgment a of con- degree charged, of the offense or of a therein, lesser crime included where the errors do not affect the conviction of the lesser Offense.” any statutory authority, Without reference to it 24B S., stated in Law, §1946, p. C. J. Criminal 317: too, “So entire record where in view of the evidence and the adjudged accused have been should guilty degree crime, of a lesser offense or general appellate rule the as court need not may reserve or order modify new or order the ingly;” modification accord- foregoing commentary authority also notes some contrary, minority. to the but such is in the similarly has a Oklahoma statute worded to that says part of this It state. that: Appellate reverse, “The Court affirm or
modify judgment appealed 22 from. ...” O. S.
1941 §1066. 28, Kilpatrick v. 75 Okla. Crim. court, 246, appellate 128 basis of P. 2d statute, the crime of which the reduced battery guilty was rape found from assault and with, where intent the evidence insufficient greater to cover but was sufficient 249) (p. the lesser. : said power, “This court has when it considers necessary justice, furtherance imposed. the sentence which has been 1931, 22 Section O. S. O. S. §1066. *6 Appeals Under this statute Criminal the Court power judgment the reduce the for first has to degree priate punishment. Cunningham appro rape to included offense and fix State, 55 Okl. v. 67, 1013; State, 24 P. 40 Cr. 2d Lebo v. Cr. Okl. 116, p. 288; State, 452, 267 Plaster 45 v. Okl. Cr. p. 383 802.” Woolridge state, v.
In a later case the from same 196, (1953), 263 the P. State 97 Crim. 2d Okla. 326, appeal authority on and exercised same court 201-02) (pp. stated: record, it study “After is a of the entire careful other physical our conclusion facts and that testimony sustain a conviction were sufficient to intent
for to this offense of assault with the included justice, rape, in and the furtherance commit modify, hereby modify and does court will degree that- for the first to the conviction in assault intent to offense of of the included punishment assessed the rape, and the commit years 15 in the from reduced State defendant is years a term five in the. State penitentiary to judgment modified thus the of penitentiary, and as Kilpatrick affirmed, precedent is 28, 246; 128 22 State, P. 2d O. S. Okl. Cr. 75 v. 1951 §1066” authorizing Wyoming, similar statute exists judgment “modify” the appeal the court interpreted high state of that The court sentence. authorizing court statute as reduce such a of a included offense ...where to that
621 v. same. State Sorrentino warranted the the evidence Wyo. 129, 420, 224 34 A. L. R. Pac. 1477. 31 (pp. construing said, statute’ in ) 1486-87 gives word “This construction full force to must, accordingly, ‘modify’ §7589, supra, and giving adopted, that should be be construction judgment. any power full this This power should, course, be exercised hot where an in the record one which had error throughout, deprived a of a fair defendant affecting prejudicially .the conviction all, power may well crime at and it only comparatively can be exercised few however, think, in view all of cases. We case, properly the evidence it exercised though Manslaughter, in be a distinct crime from that of theless, case at bar. murder, is never Quan Sue, latter. included in the v. People a144, 976; 972, 191 Iow W. 179 N. v. 274, 440; Farrell, 264, 146 109 Mich. N. W. Com. McPike, Am. Cush Dec. 727. ver v. dict of degree necessarily murder second in the finding implies of all of the facts essential to manslaughter, voluntary (cid:127)the *7 has benefit a trial for defendant had the of that fully though as the herein as information charge only. is, had contained verdict that excessive, seen, be we have and should as treated such, excess, illegal to as to excess as only.” as such Ohio, the of the Constitution contains a State In provision wording very in' in similar the statute to held, interpre state, and it under the has been our language, given the constitutional that tation by reducing power court has the to the evidence warrants the offense where to a lesser (1941), 239, 139 Ohio St. v. Porello same. 198.
N. E. 2d
There are a any number of without states consti- statutory tutional authority specifically authoriz- ing judgments modification alteration of appeal cases; yet high in criminal courts those they states have found that have inherent discretion to do so. 604, Forsha v. State 183 Tenn. 194 S. W. degree
2d a conviction of murder first degree was reduced to in the murder second because prove premeditation. the failure to The court made following 467); (p. statement opposition petitioner’s “In to contention that we should reverse and remand for a new the State contends that in the second the conviction of murder degree should be sustained. It argued petitioner had a fair has trial Constitution, under the the law does not re- quire us to remand for a new trial position crimes. We think this lesser is sound. If the State preponderate does; the evidence in in petitioner’s favor of the the second murder innocence degree, the State have is entitled to his conviction of that offense affirmed. legal right trial “We do no violence ‘by petitioner his fair because he has had a guilty. peers’ no and was found There is . he have as insistence that to his did not such guilt or innocence of all offenses. upon a remand a contention made “The might acquit jury perchance him of offenses all given For us to consideration. cannot remand serious hypothesis upon any would this case such gamble recognition right give to one’s be to justice prejudice of cause with the peace society. petitioner good order of mansalaughter. involuntary guilty of he admits presented has petitioner’s counsel “While against argument could be made strongest modify and re- appellate courts to power of cases, we feel that criminal punishment duce complete applying petitioner justice done has been *8 casé.” announced in Corlew the rule
628 For other point, cases in see:
Corlew v. State (1944), 220, 181 Tenn. 180 W. S. 900, grand 2d where a larceny conviction of was re petit larceny duced to prove because of the failure to value property taken was sufficient to requirements grand meet the larceny.
Wills State (1936), 182, 193 98 Ark. S. W. 2d v. 72, where the reduced a conviction of assault rape with simple intent to to assault. also: See Wilson v. State (1924), 162 494, Ark. 33 R 1182. A. L.
Daniels v. 328, 196 Miss. 2d So. battery where assault and kill intent to was battery.
reduced to assault
In the case before we have a similar us situation. amply proves The evidence the lesser of- included fénsé, prove major is insufficient to crime proof penetration. because of the failure of constituting All other elements the crime have been proved to the satisfaction of the finder of the facts. justice public
It seems to us that served best avoiding already a second trial over facts found where place. a fair taken If has error had occurred prejudiced therein which the accused so the trial unfair, appellant would, course, be entitled ato new trial. argue appellant may he is entitled to a regardless showing
new unfair prejudicial However, error. ness Consti guarantee tution does not accused more than one trial. This is true whether fair acquitted. acquitted, If accused be convicted he is jeopardy plead former entitled as all charged. the crime If included offenses covered he attaching jeopardy double benefits from the les acquittal, in .case of included offenses then ser *9 a trial includes a fair after that a conviction follows principle The offenses. included conviction of principle operate The logically both w;ays. must judgment of convic- which the here under enunciated may that of a lesser included modified to tion mandatory cases, all dis-r offense, but rather not cretionary court evidence. with under the the may the we, appeal, a modification of
If order judgment of a lesser included of conviction to that insufficiency on a of an evidence offense because of certainly crime, particular then a trial of element a new motion for where do so a therefor, grounds the in order to correct exist the appeal. avoid useless error and to case the trial court directed reducing judgment of it conviction battery lesser included offense assault and (sex) §10-403, Burns’ the intent and with accordingly. to sentence JJ., Landis, concur. Achor and Myers, opinion. J., with concurs Jackson, J., opinion. C. dissents Opinion
Concurring J. —I concur the result attained in Myers, this, opinion. majority The facts warrant case doubt, proof, beyond a reasonable lesser in- offense, battery is, cluded assault and with intent gratify attorney Appellant’s sexual desires. ad- guilt argument. greater thereto in oral mitted his proven. was question is of the whether trial , be modified court should and directed to appellant accordingly, or, sentence whether this .court should reverse remand case for a.new trial. majority opinion
The- procedure indicates broadly modification applied it follows could be in all agree with, fields I criminal law. This cannot re- gardless position other If states have taken. going deprive
We are of a new trial defendant -determining wrongfully convicted, after he very sparingly should bé thorough done and with regard for the nature of his crime and the circum- stances, Otherwise, of his trial. conceivably this court placed position could be usurping right in the by jury convicting to a a defendant without *10 giving day him his in court. particular case,
In this study a careful of the record clearly propriety reveals the modification judgment as ordered.
Dissenting Opinion J. —I C. am unable to concur in the con Jackson, majority clusion reached in concurring .either the or opinion herein and dissent to both.
Appellant charged crime on a year girl. nine old court, resulting Trial was had to the finding judgment guilty, a- imposi- and the tion appellant. óf á life sentence on
, portions .1 concur majority in those and con- curring opinions holding that there is not sufficient prove appellant guilty evidence to of the crime of rápe. majority opinion “[ajlthough question states .... first, impression
here one of this state. . .” . With disagree. vigorously this I statement most The cor- only statement would be case is rect’ one this of a of like number cases heretofore considered this past, the first court in the this is time usurp prerogative temerity to has had the try jury, and sentence an a triál court or counsel, absentia, without accused in without accuser, opportunity his without to face substi- tuting feeling opinion judgment, its depriving jury, and of con- the accused triab court rights guaranteed stitutional him both the State (cid:127) - and Federal Constitutions. reversed, and the cause should be grant with instructions remanded to appellant’s motion for new trial. Reported 189 E.N. 2d 575.
Note. — ex Bank of rel. Calumet National etc., McCord, v. et al.
Hammond April 18, 30,272. Filed [No. 1963.]