108 Ind. 53 | Ind. | 1886
In this case, the indictment against the appellant, Skaggs, contained two counts. The first count charged that the appellant, on the 27th day of August, 1885, at Montgomery county, Indiana, “did then and there, unlawfully and feloniously, in a rudo, insolent and angry manner, touch, push, strike and choke one Flora May Ennis, a woman, with intent then and there-and thereby, her, the said Flora May Ennis, feloniously, forcibly and against her will, to ravish and carnally know.” The second count of the indictment differs from the first count only in this, that the words “ forcibly and against her will,” appear in such second •count immediately preceding the words “in a rude, insolent and angry manner,” and are repeated in the conclusion of •such count, with the same context as they appear in the first count.
Appellant has here assigned, as error, the overruling of his motion to quash the indictment herein. Of this error, all that is said by his counsel is contained in the following sentence : “ Our objections to the indictment are, that neither count thereof states a public offence in the language of the ■statute, or terms equivalent thereto.” Each count of the indictment charged the appellant, in the language of our statute, with an assault and battery with the intent to commit the particular felony of rape, and that, certainly, is a public offence. Sections 1911, 1917 and 1909, R. S. 1881. The motion to quash the indictment was correctly overruled.
Under the alleged error of the court in overruling appellant’s motion for a new trial, many causes were assigned therefor. Of these causes, we will consider and pass upon ■such only as his counsel have discussed in their elaborate brief of this case. It is insisted that a new trial ought to have been granted to appellant, because the verdict of the jury was contrary to law, and was not sustained by sufficient evidence. It is not claimed, however, that there is no evidence, appearing in the record, which, if believed, would fairly sustain the verdict of the jury. The evidence is too voluminous to be even summarized in this opinion. It was conflicting in many particulars, but it can not be questioned, as it seems to us, that there was evidence before the jury which fairly supports their verdict on every material point. The credibility of the different witnesses, and the weight to be given to the evidence of each witness, were proper matters for the consideration of the jury; and where, as here, their verdict has met the approval of the trial court, it will
It was assigned as cause for a new trial, that the court erred in permitting the prosecuting witness, Elora May Ennis, who was deaf and dumb, to be examined as a witness on the trial, by and through one Charles W. Wright, as an interpreter, when it was developed by his examination that he did not understand the deaf and dumb or sign language, and was not a competent interpreter. It is enough, perhaps, to say that this cause for a new trial is not shown to be true by the bill of exceptions appearing in the record. Wright did not claim to be an adept in the deaf and dumb or sign language ; but he claimed that he so far understood the language that he could well and truly interpret as well the questions that might be propounded to the deaf and dumb witness, as her answers thereunto. There is nothing in the record to show that Wright could not do all that he' claimed he- could do, and, certainly, nothing to show that appellant was in anywise injured by the action of the court in permitting Wright to act as an interpreter in the examination of the prosecuting witness. Our code provides (section 495, R. S. 1881), that “ Interpreters may be sworn to interpret truly whenever necessary ; ” and, surely, we need not argue for the purpose of showing that it was necessary in this case. In Wharton’s Criminal Evidence, section'449, it is said: “Sworn interpreters, in criminal as well as in civil cases, are to be appointed by the court where the witnesses do not understand the' English language. It may be added' that the accuracy of the interpretation of the sworn interpreter pray be impeached, and is ultimately to be determined by the jury.” United States v. Gibert, 2 Sumner, 19; Sehnier v. People, 23 Ill. 11. So that the matter complained of, as an error of law, in this cause for a new trial, was á question of fact, and not of law, for the ultimate decision of the jury.
In our opinion, however, the proceeding in question was not fairly open to any of the criticisms or objurgations of appellant’s counsel. In some particulars the case is an anomalous one, for, to the credit of human nature, it is not often that a man is charged with an -attempt, even, to gratify his passions upon the person of an unfortunate woman, forcibly and against her will, who is deprived- of the sense of hearing and the power of speech. When the case occurs, however, as it must be sustained in the nature of things by the woman’s evidence in relation to the offence charged, the proceedings to obtain her evidence will also be anomalous, to some extent. If it be conceded that the proceedings, of which appellant complains, were irregular or even erroneous, there is nothing in the record to show that the appellant was in any manner injured thereby. The record fails to show what the question was which shocked the modesty of the prosecuting witness, or what was her answer thereto which she communicated to Miss Coons, out of the presence of the court and jury. In this state of the record we can not say that the error under consideration was material, or in anywise injurious to the appellant. Under our criminal code, we must disregard any error in the decision or action of the court below which does not, in our opinion, prejudice the substantial rights of the defendant. Section 1891, R. S. 1881; Clayton v. State, supra. In other words, the record must show that the error complained, of was material and injurious to the defendant; otherwise the error must be disregarded here, and will not authorize the reversal of the judgment.
A number of the causes assigned by appellant for a new trial, in his motion therefor, are simply repeated in the brief of his counsel. The questions which, as we may suppose, it was intended to present for our decision by these causes for
The eleventh cause for a new trial was apparently verified by the oath of appellant, and was for alleged newly discovered evidence. It was stated, in substance, in this cause for a new trial, that appellant had discovered since the trial of this cause, that he could prove by four named witnesses, three of whom bore the same patronymic as himself, that this prosecution had its origin with Luella Skaggs, appellant’s wife and the mother, by a former marriage, of the prosecuting witness herein; that Luella Skaggs procured the prosecuting witness “ to make the false statements to which she testified on the examination as a witness and proceedings in this cause;” that Luella Skaggs procured and influenced the prosecuting witness, her daughter, to swear falsely against appellant, in order to procure his imprisonment and conviction; that her object therein was to rid herself of appellant, as a husband, so that she could take up another man, which she had done, in tact, since appellant’s imprisonment, and had lived with such other man, as husband and wife, and that appellant’s prosecution and conviction herein were simply and only the culmination of the schemes and machinations of Luella Skaggs; that all of the four witnesses, who would swear to the aforesaid facts, were residents of Montgomery county, Indiana, “ and that defendant could not possibly have discovered and procured said testimony at the trial of this cause; * * * that he can not procure the affidavits of such witnesses to file in support of' this ground for a new trial; * * * and that since his arrest, a long time prior to said trial, and since such trial, he had been confined in the county jail.”
Considering this cause for a new trial, in its two-fold aspect of written cause and of appellant’s affidavit in support of such cause, it was manifestly insufficient to entitle him to a new trial herein on the ground of newly discovered evidence. It had no support whatever, except such as was
It is assigned here, as error, that the trial court rendered a judgment imposing a penalty upon appellant which was not assessed by the jury in their verdict, nor authorized by the
We have found no error, in the record of this causé, which authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.