151 N.E. 827 | Ind. | 1926
Appellant was convicted of the rape of a girl eleven years old. He was tried by the court without a jury, was found guilty, and was sentenced to imprisonment for life. Overruling his motion that he be discharged, his motion in arrest of judgment, and his motion for a new trial are assigned as errors.
By the motion for a new trial, he seeks to challenge the sufficiency of the evidence to sustain the finding, but none of the evidence is in the record. The order-book entries 1. recite that on February 19, 1924, at the February, 1924, term of court, the motion for a new trial was overruled, when sixty days were allowed for preparing and tendering all bills of exceptions for filing, and that the bill of exceptions purporting to contain the evidence was presented, certified and filed almost a year later, on February 16, 1925, at the February, 1925, term. This did not make the evidence a part of the record. § 2330 Burns 1926, § 2163 Burns 1914; § 656 Burns 1914, § 626 R.S. 1881; Ewbank's Manual (2d ed.) §§ 24, 33. However, what is set out in appellant's brief as having been testified at the trial would be amply sufficient to support the verdict of guilty, if contained in a proper bill of exceptions.
The motion to discharge the accused at the conclusion of the evidence was for the alleged reasons: (a) That *683
the facts stated in the affidavit do not constitute a 2. public offense; and (b) do not charge such offence with sufficient certainty, in that (as it averred) at the time defendant waived arraignment and pleaded not guilty, and until after the witnesses were sworn and after one of them had commenced to testify, on February 4, 1924, the affidavit had charged that the offense was committed on the impossible, because future, date of "the ____ day of April, 1924," after which commencement of the trial, it was alleged to have been changed to read "1923." But even if it were shown to have been true that the affidavit originally failed to charge a public offense, or failed to do so after the alleged alteration, such fact would not give defendant a right to be discharged from custody if the trial judge was convinced by the evidence that less than a year before and within the period of limitation of actions (§ 1887 Burns 1914, § 20, ch. 169, Acts 1905 p. 584), he had committed the alleged offense. Under those circumstances, it would be the duty of the court to detain him in custody until a proper indictment could be returned or a proper affidavit filed, charging him with the offense. § 2228 Burns 1926, § 2066 Burns 1914, § 195, ch. 169, Acts 1905 p. 584; State v. Simpson (1906),
The record contains two affidavits made by the same affiant on February 4, 1924, each charging that, at the county of Allen in the State of Indiana, the defendant therein named, "did then and there unlawfully and feloniously make an assault in and upon R.F. then and there being a female child under the age of 16 years, to-wit, 11 years, and did then and there feloniously ravish and carnally know her, the said R.F., contrary," etc. Both of these affidavits appear in the record under the same order-book entry, which states that the prosecuting *684 attorney, "files a new affidavit, charging the defendant, Fred Shock, with rape, which affidavit is in these words:" one of them being set out immediately following the other, and the second affidavit being followed by the statement in the order-book that, "comes now the defendant in person and by counsel (naming them), and the said defendant waives arraignment and pleads not guilty." The first of these two affidavits thus set out in the record names the defendant as "Fred Shoch," and alleges that the offense was committed "on or about the ____ day of April A.D. 1923"; and the second names him as "Fred Shock," while the typewritten allegation in it is that the offense was committed "on or about the ____ day of April A.D. 1924," but a figure "3" has been written with ink over the "4" in "1924."
Appellant filed a motion in arrest of judgment for the alleged reason that "the facts stated in the affidavit do not constitute a public offense" (§ 2326 Burns 1926, § 2159 Burns 1914, 3-4. § 283, ch. 169, Acts 1905 p. 584). Such a motion does not bring in review mere technical defects and matters of uncertainty which might afford grounds for quashing the affidavit on timely objection for that cause before the trial. Woodsmall
v. State (1913),
Any uncertainty and lack of definiteness in charging *685
that the child was under twelve years of age, if the affidavit was uncertain in that particular, as defendant insists, 5, 6. should have been challenged by a motion to quash for the reason that the affidavit did not state the offense with sufficient certainty (§ 2227 Burns 1926, § 2065 Burns 1914, § 194, ch. 169, Acts 1905 p. 584), or by a motion to modify the judgment by reducing the punishment to what is provided in case of the rape of a girl under sixteen. It was not available as a cause for arresting the judgment. § 2326, supra. Obviously, a mere mistake in writing the last letter of defendant's name in the affidavit which correctly alleged the date of the offense would not make it subject to a motion in arrest, where the name would be pronounced the same which ever way it was spelled, and defendant had gone to trial without objection on that account. § 2208 Burns 1926, § 2050 Burns 1914, § 179, ch. 169, Acts 1905 p. 584; Bader v. State (1911),
The court did not err in overruling the motion in arrest of judgment.
The judgment is affirmed.
