160 Ind. 300 | Ind. | 1903
Appellant was tried in the lower court before a jury on an affidavit and information which charged that he had perpetrated an assault and battery upon the person of Martha B. Stilwell, with the felonious intent to commit a rape. The jury returned a verdict finding the accused guilty of assault’ and battery, with intent to commit rape, as charged in the affidavit and information, and further found that he was of the age of forty-two years. Over his motions for a new trial, venire de novo, and in arrest of judgment, the court rendered judgment on the verdict as follows: “It is therefore ordered, considered, adjudged, and decreed by the court that the defendant William Shular is guilty of assault and battery, with intent to commit a rape, as charged in the affidavit and information herein; that his true age is forty-two years, and that for the offense by him so committed he be imprisoned in the Indiana state prison at Michigan City for a term of not more than fourteen years nor less than two years, and that he be disfranchised and rendered incapable of holding any office of trust or profit for a term of five years, and that he be fined in the sum of $5, and pay the cost of this 'proceeding, taxed at $-
The State, upon the trial, introduced evidence tending to establish that Martha B. Stilwell, the injured person, was a reputable woman, the wife of McClelland Stilwell, and that she resided with her said husband in the city of Orawfordsville, in Montgomery county, Indiana. She was thirty-eight years old and had been married for fifteen years. On the night of March 10, 1902, her husband was absent from the city,. and she attended a “Ben-Hur festival” — a social affair which was held at the Elk’s hall in the city of Crawfordsville. She left the festival, as shown, about eleven o’clock that night; leaving earlier than she intended, for the reason that she was suffering at the time with a pain in her back. After leaving the hall for the purpose of going to her home, she first went to a drug store to procure some medicine to relieve the pain in her back. After procuring the desired medicine she left the drug store, a few minutes after eleven o’clock, and started for her home. As she passed west along Main street the electric lights were burning, and she testified that she observed two men standing in a stairway between two saloons. Immediately after passing by the point where these men were standing, she heard footsteps behind her, and became aware that' some one was following her, and in a very short time the man who was following her overtook her, and rudely demanded to know where she was going. She informed him that it was none of his business, and thereupon he caught hold of her and began to pull her, saying, “Come on with me.” Mrs. Stilwell stated that she demanded that he let her
John Eooney, a witness for the State, testified that soon after eleven o’clock on the night in question he was standing
There is evidence to show that the two men whom Mrs. Stilwell had met after she was assaulted were Jack Kelly a policeman, and Arthur Stewart, and upon her complaint to the former in regard to the assault he blew his police whistle. Several witnesses testified that about eleven o’clock that night they saw appellant in the saloon just east of the stairway in which Mrs. Stilwell said she had seen the two men standing as she passed along. Appellant himself testified that he went into this saloon about a quarter past ten o’clock, and remained there about three-quarters of an hour, and left when the proprietor said he wanted to close up. He resided about two miles west of the city of Crawfordsville, with his father, and, in describing the route which he took home after leaving the saloon, he testified that he went west on Main street to Washington street, and south on Washington street to Pike.street', and there turned west and went, toward home, and stopped in a barn a short distance from his home, went to sleep in the barn, and remained until about three o’clock in the morning.
Mrs. Stilwell further testified that she saw the man well in the face, who had assaulted her, by means of the electric light burning in the room by the alley where she was as
On the night in question the alley down which Mrs. Stilwell testified her' assailant ran after he let her go was muddy, and there is evidence to show that there were tracks made in the mud by a man running west down the alley. There is other evidence given in the case, all of which either directly or indirectly goes t'o corroborate Mrs. Stilwell’s statements, and points to appellant as the guilty person. In fact, there seems t'o be no witness who contradicts the statements of Mrs. Stilwell that she was followed on the night in question by some man and assaulted in the manner as herein shown.
The appellant, as a witness in his own behalf, denied that he followed her or made any assault upon her. It was shown by appellant’s own admissions on his cross-examination when on the witness-stand that he had frequently violated the penal laws of the State, and had served a term in the penitentiary.
Possibly some evidence not strictly proper may, unchallenged, have been given t'o the jury on the trial of this cause; but as to whether there is or is not evidence in the case of such a character w© neither affirm nor deny, but consider only such questions as are duly presented. We can not disturb the judgment on either of the grounds that the verdict is contrary t'o the law or contrary to the evidence, for the reason that there is evidence-which fully sus
The rule is well settled that before this court, upon appeal, is warranted in disturbing a judgment in a criminal prosecution on the evidence alone, that there must be such an absence of evidence in respect to some fact or element material to the crime charged as to present a question of law, which, under the circumstances, must be decided in favor of the convicted party. Lee v. State, 156 Ind. 541, and cases there cited.
Upon the trial below one Arthur Stewart, a witness in behalf of the State, was asked the question by the State’s attorney if Mrs. Stilwell on the night in question, immediately after the assault upon her, complained to one Jack Kelly. The witness, in response to this question, answered, “I think so.” He was then asked if she stated that she was assaulted. Counsel for appellant objected to this question on the ground that, as propounded, it was intended to elicit' from the witness what she said at the time she made the complaint to Kelly. The objection was overruled, to which appellant excepted, and the witness in response to the question answered, “Tes, sir.” It was disclosed by the
It is next insisted that the coux*t committed an error in giving ixxstruction number six to the jury. Counsel condemn this charge on the ground: (1) That thereby the trial court made an argument to the jury, whereby it attempted to excuse Mrs. Stilwell fox* the mistake which she made in the identification of Mr. Barnwell as her assailant oxx the night of the assault; (2) that it made her alleged nervous, excited, and hysterical condition at the time of the identification of Barnwell too prominent as an excuse fox* the mistaken identity. The charge in question, to the extent to which the court thereby professed to advise the jury, is as fair and favorable to appellant as he could demand. It contained no specific mention in regard to the nervous, excited, and hysterical condition of Mrs. Stilwell at the tixne she identified Barnwell. The court thereby, among other things, merely advised the jury that in weighing her testimony as a witness upon the trial, they had the right, and it was their duty, to take into consideration the fact that before she identified the defendant as her assail
It is next insisted that appellant' was prejudiced or harmed by the presence of the bailiff in charge of the jury, being in the jury room and conversing with the jurors at the time they were deliberating upon a verdict. This question was presented to the lower court, tried, and determined upon the evidence pro and con adversely to appellant. The affidavit of the bailiff in question positively shows that he went into the jury room only for the purpose of attending to some of the necessities of the jury, and when in the room he spoke to some of the jurors in regard to some of their wants and necessities; that he was not present in the
It is lastly contended that the statute known as the indeterminate sentence law is unconstitutional, and that the court erred in advising the jury in respect to the verdict they should return in the event they found appellant guilty of the felonious crime charged in the affidavit and information. The constitutional- validity of this law has been repeatedly affirmed by a majority of this court. Miller v. State, 149 Ind. 607, 40 L. R. A. 109; Skelton v. State, 149 Ind. 641; Vancleave v. State, 150 Ind. 273; Wilson v. State, 150 Ind. 697; Davis v. State, 152 Ind. 34, 71 Am. St. 322; Colip v. State, 153 Ind. 584, 74 Am. St. 322.
The verdict of the jury, in respect to its form, and the judgment of the court thereon, is each apparently in substantial compliance with the act or statute in controversy. The writer of this opinion, however, speaking for himself alone, and not for the court, concedes that there is much force and merit in the argument of appellant’s learned
There being no available error presented in this appeal, the judgment is affirmed.