149 N.E. 430 | Ind. | 1925
Lead Opinion
The appellant was convicted of assault and battery with intent to commit the crime of rape upon a female child under the age of sixteen years. From the judgment he appeals. The only questions discussed in his brief arise upon the action of the court in overruling his motion for a new trial.
He says the verdict of the jury is not sustained by sufficient evidence and, under this specification, he asks us to reverse the judgment on the weight of the evidence. The rule in cases 1. of this kind is that only the evidence in support of the verdict of the jury can be considered, and if the evidence tending to *610 support the verdict contains some evidence on every essential fact necessary to support the verdict, the verdict must be sustained, and this court cannot consider any evidence contradicting or tending to contradict the evidence in support of the verdict.
The evidence shows that the complaining witness was fifteen years old on September 15, 1923, and that the defendant assaulted her and had sexual intercourse with her on August 8, 1923. 2. It also appears from the evidence that the act was committed in Clark county, in the State of Indiana. It thus appears from the evidence that all the material facts constituting the offense are proved.
The appellant says that the prosecuting witness is unworthy of belief and her story connecting appellant with her downfall is false. These were questions for the jury in trying the case 3. and a verdict having been rendered by the jury, we are not at liberty to interfere. We cannot weigh the evidence. SeeDeal v. State (1895),
In Chesterfield v. State (1923),
The appellant claims that the court erred in giving certain verbal instructions which he alleges were given although the appellant had requested that the instructions *611
be given in writing. In the transcript appear certain 6. instructions given by the court at the request of the state and certain instructions tendered by the state and given; but the instructions tendered by appellant and given by the court are numbered in blank and no exceptions appear to be reserved to the giving of the instructions tendered by the state and given. It further appears that the instructions in this case were not brought into the record by a bill of exceptions. There is no bill of exceptions bringing into the record all of the instructions given in said case. It has been held that no question is presented as to the giving of instructions where it does not appear from the bill of exceptions containing such instructions whether or not it contains all the instructions given in the case. Hollan v. State (1916),
When in a criminal case it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such 7. bill of exceptions does not contain all instructions given. Cooper v. State (1889),
In such cases the presumption is that the substance of the instructions asked was embraced in the instructions given by the court which are not contained in the bill of exceptions, 8. and that if any instructions given by the court, and set out in the bill of exceptions, are erroneous they were corrected or withdrawn by other instructions given by the court and not set forth in the record. Pence v. Waugh (1893),
In the case of Bennett v. State, supra, where it was claimed by appellant that § 2240 Burns 1914, was read as a part of the instructions in the case, after the appellant had requested that the instructions be given in *612 writing, it was held that this court must presume, nothing in the record affirmatively appearing to the contrary, that the court withdrew the oral instructions claimed by appellant to have been given and substituted therefor written instructions, and that, when objection was made to the reading of § 2240, supra, the court copied such section into its instructions and reread it.
In the instant case, there being no bill of exceptions showing affirmatively that the court did not comply with the written request of the party that the instructions be given in 9-11. writing, we must presume that the trial court complied with the law in that particular. As a general rule, the appellate court, in the absence of a showing in the record to the contrary, will indulge all reasonable presumptions in favor of the correctness of the judgment and rulings of the trial court, and will presume that proceedings had were free from error. In order to overcome such presumption, error must be shown affirmatively by the record, and the burden of so showing is upon the party complaining of it. Bader v. State (1911),
In the absence of an affirmative showing of error, the presumption is that the ruling of the trial court is correct.Malone v. State (1913),
No reversible error being shown in the record, the judgment is affirmed.
Addendum
ON PETITION FOR REHEARING.
The appellant claims, in his petition for a rehearing, that two separate verdicts were returned in this case and that this matter was presented by the record and briefed in argument 12, 13. and that the court did not consider or pass upon it. Appellant also claims that the record affirmatively shows that the judgment was upon the second verdict. *613
He also claims that the court did not pass upon the question of former jeopardy which he claims was presented by the record and briefs. He also claims that no notice was taken of his request for oral argument. The record, however, shows that only one verdict was returned and received by the court, and upon that verdict, judgment was rendered. The record shows that the jury came in with a verdict which was not in legal or proper form and the court sent the jury back to correct the verdict. This it was the duty of the court to do. The jury returned with a verdict in proper form, which the court accepted and ordered spread upon the record and judgment was entered on such verdict. The verdict is a part of the record proper and the record is the appropriate and only necessary place where it should appear. The verdict as it appears in the record is controlling. 4 C.J. 157; Vest v.State (1910),
If a verdict is so uncertain that the court cannot understand it and is clearly not in compliance with the law, it is the duty of the court to send the jury back with proper 14. instructions as to the mode of framing a verdict. This the court did, and, in so doing, no error was committed.Crocker v. Hoffman (1874),
Instructions given under such circumstances by the court as to the form or character of the verdict need not be in writing, although written instructions had been requested at the 15. beginning of the trial. Bradway v. Waddell (1884),
This correction of the verdict does not constitute a second jeopardy. Pehlman v. State, supra. The first verdict brought in by the jury was defective and it was proper for the 16, 17. court to refuse it and instruct the jury to retire and return a proper verdict. No person excepting the judge can receive a verdict. McClure v. State (1881),
The judge refused to receive the verdict first brought in because it did not pass upon the issues of the case. After an explanation, the jury retired and brought in a verdict 18. covering the issues. The first verdict was not one upon which the court could render a judgment; it was therefore no verdict at all. It was proper and the duty of the court to refuse it and to point out to the jury its error, all of which was done. The jury having returned to the jury room to correct its verdict retained its power as to the form of the verdict and could have returned whatever verdict it decided upon the same as though it had not previously returned a defective verdict.Gianino v. State (1915),
Rule 26 of this court provides as follows: "Upon separate petition in writing by either party, on the original hearing of a cause, the court will set it down for oral argument, if 19. the application is made within the time allowed for filing briefs, otherwise, the court in its discretion will refuse the application." This rule was not complied with by the appellant. The last sentence in appellant's brief is as follows: "In addition to the observations in this brief, *615 we respectfully ask for oral argument on the Points and Propositions set forth herein." This is not in compliance with Rule 26 of the Supreme Court.
The petition for rehearing is overruled.
