*1 law, any certainty I If do we are have according principles should bend constitutional believe adversity, we prosperity nor should winds of a dif- engraft Constitution attempt into Indiana powers separation of process concept of ferent due inter- principles been those from identical what of the United the Constitution preted to mean under States. judgment.
I reverse would 415. Reported 143 N. E. 2d Note. — of Indiana. Wedmore Rehearing 29,377. denied Filed June [No. September 1957.] *3 George Patton, T. Bend, appellant. South for Steers, Edwin K. Attorney General, and Owen S. Boling, Deputy Attorney General, appellee. for Appellant charged by affidavit with
Bobbitt, J. having knowledge carnal of a female child under the age sixteen §3, p. under Acts ch. 447, being §10-4201, Replacement, Burns’ 1956 tried by jury, guilty battery,1 found of assault and and sen- county jail days tenced and fined in $1,000. sum assigned
Two errors are as follows: overruling 1. The court erred in appellant’s mo- discharge prosecution. tion to for lack of overruling 2. The court erred in appellant’s mo- *4 tion for a new trial. Any person touching of the of a female under child age of sixteen with the intent to have sexual intercourse her, legal contemplation without her consent. Caudill (1946), 536, v. State 224 N. E. 69 2d 549.
216 assigned in the order errors shall consider
We mentioned. court caused Appellant trial
First: asserts beyond by recognizance three bond him to be held 169, §220, 1905, ch. Acts of court in violation of terms being Replacement, p. §9-1403, Burns’ judge under “failing special appoint qualify a 1-12” of court. Rule proceed- unnecessary here the deem it to detail
We ings Superior the selec- Joseph for had in the Court St. ap- judge. to note special It is sufficient tion of a change of venue a motion for a from pellant filed and entered judge in he was arrested the term in which ensuing delays from plea. resulted his The motion. change request judge,
Appellant, his set delay the chain of events which caused in motion acts, delay This was caused his in his trial. discharge under to a he is not entitled hence Flick v. Sullivan supra. State; State §9-1403, 739; 343, 345, 346, (1939), 2d 215 Ind. N. E. Col v. State 571, 575, glazier 231 Ind. N. E. 2d 2; N. E. 236 Ind. Shewmaker 2d 290. overruling appellant’s not err in
The trial court did discharge. motion for question presented by
Second: sole second assignment sufficiency of the evidence error is jury. support the verdict Considering the ap- evidence most favorable pellee, the record discloses that Richard Wedmore and picked up girls, ages Jack Holderman two 14 and 15 years, respectively, representation under false girls taking they father of one were *5 baby telling girls them to sister, sit the for Wedmore’s they going dancing party. They that were have a and proceeded girls Michigan to take the across bought they line where of beer. two cases they On their return took one case of to beer apartment they picked up Wedmore appellant, where Wedmore, separated Jack at who that time was from girls his wife. The three men and the two then went girl pick up to appellant. another picking After up girl they the third all then apartment went to the they of Jack Holderman where drank beer and wine prosecuting and danced. The witness testified that p.m. appellant about 5:30 bedroom, took her into the hallway apartment, which was off a where he part clothing, removed and her had sexual inter- her, which, including course with the details of penetration, fully prosecuting were related witness. witness,
This in her statement to the South Bend police, 31, 1953, made on March which is in the evidence “C,” got as State’s Exhibit to related she her apartment- day p.m. brother’s about 8:30 on alleged act, sister-in-law, Grace and that she told her Reed, happened, about had what and that she also told girls (Martha the other two Richards Caroline Bauer) who had with her at been Holderman apartment.
Appellant that there asserts is not sufficient evidence probative value to sustain the conviction be- herein (1) cause testimony “case rests of a single witness who sois discredited on material matters by contradictory testimony as to render her unworthy belief.”; (2) because the State took steps require no psychiatric examination probable credibility. witness determine her named.
We shall consider these reasons in order (1) prosecuting wit- The record discloses ness, September 25, 1953, appellant’s called or about by telephone tell that she “wanted sister change my story and Jack about Dick Wed- [her] 17, 1954, February prosecuting ; more.” and that on attorney appellant’s to the office of went witness reciting appellant signed did a statement *6 any 1953, 30, “or March her on relations with sexual other date.” prose- by the record statements
There is also the did cuting she she said that herein in which witness Wedmore, but Dick not have sexual intercourse stated, of these statements she occasion of each the nothing said at equivocation, there was without relating to Dick these the time she made statements concerning story changing Jack Wedmore, her about Wedmore, appellant herein. the age the at prosecuting 17
The witness was appeal is based. time which this trial telling the truth when or not she Whether was appel signed in the office the statement she attorney, at the or on the witness stand lant’s question jury. trial, The for the time weight of credibility witnesses herein and the jury, questions testimony for the and this rule are their rape. Liechty (1930), v. State applies in an action for (1946), 466; 66, 74, E. Ritter State 169 202 Ind. N. 426, 427, E. 2d 530. 67 N. Ind. power It within is not this court to determine credibility say of a or to when a is witness witness telling (1955), the truth. Yessen v. 311, 315, apparent E. 2d It N. 760. prose jury that the believed from verdict given they testimony cuting at the trial —this witness’ right do, and, doing, they had a could take in so reciting into fact consideration the the statement appel- that she did not with the relations sexual signed appellant’s lant was the office of her attorney only present, at time when she he were and also that such statement was witnessed attorney appellant. for determining credibility
In her as witness State, support testimony, and in jury of her also right that,
had the fact at to consider the her opportunity, prosecuting first told witness girls and the other two who sister-in-law at were apartment, Holderman about the incident allegedly which People occurred in the bedroom. 430, Davis 10 Ill. 2d 140 N. E. 2d 680. jury required is not consider evidence “ in fragmentary parts, ‘but the entire evidence is to be
considered, weight and the to be determined from body the whole of the evi- dence.’” Breedlove v. State 235 Ind. 134 N. E. 2d *7 opinion In our there is sufficient evidence in the record before us to sustain the of jury. verdict the
(2) Appellant (1953), relies Burton v. State 232 Ind. support 111 N. E. 2d to his contention judgment that the of the trial court should reversed because the prosecuting State did not the witness by physician examined a the before trial.
As was true Case, question in the Burton no concerning competency raised in the trial court the prosecuting testify, the herein to any witness nor was request by appellant attorney made the or his that such subjected psychiatric any witness be to a other medi- cal examination. Indiana which statutory law in or other
There is no in the defense requires a defendant the to assist any question had If the defendant of his case. witness, it the State’s competency of as to the question in the trial duty to raise such was his failing do to opportunity, and so at earliest court the Pooley v. State question any is waived. Bingham al. 484; et 199, 204, 62 2d App. N. E. 116 Ind. 164, 173, N. E. et 128 Ind. al. Walk v. overwhelming weight authority in . . the “. competency question a ‘the dicates that objection testify, to whether based witness ground interest, relationship, infamy, or credit, incapacity to understand nature of oath, want contract, parties one of the of an death of ground, for the too late when raised or other comes J., Appeal appellate court.’ 3 C. first time in S., Appeal Error, §740, p. and C. J. and Error, [4 to be cited. Indiana seems cases §294] State, Pooley majority in line rule.” v. 199, 204, 62 N. E. 2d supra 484. App. (1945), 116 Ind. Judge Draper We concur in statement in dissenting supra, opinion State, pages in Burton at 260, 261, Ind., of 232 as follows: objection “But no was made to child because she had not this been cleared psychiatrist. None such could be made. Our legislature require has not seen fit such as precedent right testify condition to the court, I any do not believe court has right impose it. (cid:127) lightly language “I do not hold found in Wigmore’s 3, §924a, (3rd Ed.), Treatise on Evidence Vol. majority referred to which is opinion. I think it merits the careful consideration suggestions Assembly. But if of the. General Indiana, made are to become the therein law legislature. Procedural made law should be safeguards should be methods and established *8 say may clearly pointed out. To that a woman not against testify she a man in a sex case first unless covering, per- psychiatric to a examination submits haps, period months, many absence of of legislation requiring it, me an un- to to be seems arrogation authority warranted which this court does not have.
[*] % [*] [*] “I not do know whether the state undertook to de- girl termine whether this little was a ‘fantast.’ so, If right I doubt whether the state would had the did prove I it. appellant do know that the inquire fit to possibility see that on into cross- examination.”2 Judge Draper fully
What is said there covers correctly prevailing situation case. It states subject rule on the applied at will case bar. making
There is no statute in
provision
Indiana
2.
It
interest
to note that
held
this court has
that
competency
six-year-old
of a
child could not be referred to some
Simpson
one other than the court
itself
determine.
v. The
(1869),
State
any v. State case. Cf.: Chesterfield 282, 632; v. State 294, 141 E. Cosilito 194 Ind. N. 419, 424, 129. 151 E. (1926), N. 197 Ind. question stability The mental condition prosecuting concerned her witness herein com petency and a matter for court was Simpson (1869), The State 31 determine. v. 90; City Wayne Ind. The et al. Fort v. Coombs 82; 743, (1886), 75, Rep. Ind. N. E. Am. 107 7 57 (1893), 507, 524, Ind. et v. Waldron 135 Dickson al. 1, 483, Rep. 440; Myers L. R. Am. St. 35 E. 24 A. 41 N. 601, 547, 24 (1922), 592, N. E. 192 Ind. 137 v. State 245, 241, 1196; (1951), Ind. R. v. State 229 A. L. Butler E. 492. N. 2d 97 age prosecuting at the witness was 17 readily apparent
time of the trial that she statute,3 competent under the witness jury. credibility question for was a 147; 145, (1882), 88 Ind. Holmes The State 14; 14, (1912), N. E. Tyrrel Ind. 97 v. State 177 563; 49, (1936), N. E. Jacoby 210 199 Ind. State v. 290, 66 E. 2d Thompson (1946), Ind. N. 224 v. State 597. 246, State, supra (1953), 232
Prior Burton v. Ind. 892, E. in Indiana 111 2d the rule was well settled N. may rape that a conviction sustained testimony prosecuting uncorroborated witness, to convince if was sufficient 584, being 1905, 169, §235, p. §9-1603, Acts ch. Burns’ 1956 3. p. 240, being (Spec. Sess.), 38, §274, Replacement; ch. Acts 1881 (Spec. Sess.), §2-1713, Replacement; Burns’ 1946 Acts 1881 ch. being Replacement; 240, §2-1714, 38, §275, p. 1946 Burns’ Jordan 422, (1895), E. 142 Ind. 41 N. v. The State
223 beyond doubt of the trier of a reasonable the facts State, supra (1924), guilt. defendant’s v. Chesterfield supra State, 632; 282, 294, 141 E. Cosilito 194 Ind. N. 129; Abshire v. 419, (1926), 425, 151 N. E. Ind. 227; E. Thomas (1927), N. Ind. State 788; Bramlett 42, 45, E. 2d 83 N. 227 Ind. v. State E. 662, 663, 87 N. v . State 2d 880. power or court do not believe this has
We authority require support the by requiring her prosecuting in a sex case of a witness report examination, psychiatric to submit to a *10 evidence, to in sustain presented in order is to be which a conviction. stated, as Burton v.
For the reason insofar above 892, 246, supra, (1953), 111 N. E. 2d State, 232 require any purports in sex case to examined, required to be complaining witness be pur testifying, by psychiatrist a before ascertaining examining history and pose her of social report examination credibility, such probable of evidence, disapproved and presented in to overruled. credibility with the rule
This is consistent question a for the trier of the facts. of witness is objection competency timely if to In this case made, it would prosecuting had been of the witness an duty to make such the court have been the satisfy com it as to her would examination as Jur., Am. Wit incompetency. 58 petency or 101; §211, p. 144. nesses, §134, p. case, being 17 prosecuting witness presump- age, with the stand clothed took witness
224 competency,
tion of and the of establish- burden ing defendant-appel- the contrary Jur., Witnesses, §210, p. lant. 58 Am. recognize problem
We discussed Professor Wigmore Ill, §934a, p. 485, in Vol. Treatise his on Evidence, however, find, even we have been unable §934a, supra, in the cases cited where the under State required permitted was either or introduce evidence capacity competency prosecut as to the mental or ing involving witness in a criminal case crime. sex Teager (1936), 391, Cf.: State v. 222 Iowa 269 N. W. 348; (1917), 1, 600; State v. Pelser 182 Iowa 163 N. W. (1930), 133, 403; Miller v. State 49 Okla. Cr. 295 Pac. (1921), Driver State W. Va. 107 S. E. 917; 15 A. L. R. Goodwin v. State Wis. 170; Wyo. 78, 90 N. W. Strand Pac. 1030. opinion power request
In our on the court has no State, compel prosecuting witness a criminal case to and, submit a medical examination on behalf, findings present its of such an exami jury testimony nation to the via the examining physician, purpose impeaching for the supporting of such witness. court,
If the
discretion,
request
within its sound
herein,
of the defendant-appellant
had ordered
*11
appellant
thereby
examination
would
have waived
right
object
the
report
examining
the
of the
physician
him,
if it
was adverse to
at the
given
same time he would
protection
have been
all the
against
fantasy
part
and fabrication on the
prosecuting
Wigmore.
proposed by
witness as
Professor
People
Cowles
Mich.
Finally, Wigmore, himself, Professor crimes proposal psychiatric examination his for sex Legislature one within and not is matter Wigmore power of the when he out in full in courts sets Evidence, III, §924b, p. 467, proposed statute Vol. vigor protection injustices so for the which he ously proclaims.
Third: We are asked to consider evidence in the trial, record in first Wedmore in the N. E. 2d which record but is proposed at now in the case It that we bar. is also weigh in the appeared in the record the evidence as trial, credibility prosecuting first determine the in the witness now at bar. case It that “Both show is asserted records numerous statements her under oath that she did not have brother.”,* appellant his sexual intercourse with the and, further, day testified prosecutrix “The first having during trial, denied seven times she first day appellant. The next had with the sexual relations she did have she took the stand witness said of Jack appellant at the home with the intercourse outside she was took stand Holderman. Before she italics.) (Our crying.” the court room case, our decision in this which The record one, rest, only one, and statement here must shows never had prosecuting she sexual witness first appellant. The relations second trial record part of the trial not a is appeal before us. or in the now suggested that we the record examine It further judicial notice of what is appeal and take first *12 upon by pro- therein contained. The cases relied ponent procedure, this unusual to sustain search something outside the to record for which reverse judgment authority court, the trial are not considering evidence which was before us in the first appeal appear but does not in the record in the case at bar.
It is true that appeal we take notice a former judgment therein, rendered but we do not
judicially note the evidence in when one action considering State, we are another. Yessen Cf.: supra (1955), 234 Ind. 126 N. E. 2d though appeal The case at it is a bar —even second involving people us same to as offense—comes entirely case; and we cannot use facts which new may trial, upon be in which to the record in first trial, predicate error in the second unless such evidence has, by proper procedure, part been made a trial, record in the second in the is included Bill Exceptions appeal. That not the case second is to here. referred to above is be None evidence us, found in the case now before and even record weigh it we it determine when if were could not telling is witness the truth. In this case jury. matter for court, exception,
Numerous decisions without creation, since its have held that we will search the record to right reverse. We have no go authority to de hors the record in search of a reason to reverse this case.
In a further effort find some error which judgment might reversed, herein be it is asserted that, produce any “The State failed to evidence what- any way ever corroborated her statement as outcry, made no intercourse with either Wedmore. She complaint.” no she made corroborating necessary,
If evidence is *13 together a the evidence found from all consideration may be drawn proper which with inferences making prosecuting witness to the therefrom. As outcry complaint, the evidence is no jury might a that the even have inferred that she willing participant. However, no these matters form charge statutory rape. the when is element crime 531, 536, E. v. State (1946), 69 N. Caudill 2d 549. judgment the the stated the
For reasons above will trial court be affirmed.
Judgment affirmed. JJ., Arterburn, Aehor, J.,C. Landis and concur. J., Emmert, opinion. dissents Opinion
Dissenting Blackstone, dan the J. From the time of Emmert, causing gers rape an of a false accusations of female’s liberty innocent victim to lose his life or been recognized clearly by all well considered authorities. Burton State (1953), this court When now overrules 246, 892, 232 Ind. E. 2d does not on N. it do so ceased, and for has reason the rule basis ceases, a reason therefore rule should When cease. overruling prior generally adequate it cause for any precedents. Nor it it a where there case never was place. It for the in the first overrules reason rule returning thoroughly to the now discred Burton case 316, E. 2d 228 Ind. 92 N. ited Yessen State v. majority of this court affirmed 621, to two where three testimony juvenile of a perjured on the conviction given delinquent, affidavit, support agents execution of which the State committed felony court, and a fraud on trial as disclosed the uncontradicted sworn before United States District Court for the Northern District of dissenting opinion Indiana. See Yessen There, 234 Ind. E. 2d 126 N. only prosecutrix say oath, did the she lied under but the being itself, affidavit executed the commission aof felony, logically was void ab It initio. all follows sub- sequent proceedings, including judgment, were void. enlightened
At policy since 1769 it has been least give primary the criminal law to consideration to protection innocent, “for the law holds escape, guilty persons better ten than one Blackstone, party innocent suffer.” Commentaries (Gavit’s Ed.), 27, p. Law Ch. 909. Unless this *14 going repudiate philosophy court is this in the ad- justice, ministration criminal should heed the opinion internationally unanimous of the noted author- Menninger psychiatry, Dr. A. ities such as Karl and Wigmore, Dean and hereinafter others cited quoted.
If ever there was a conviction based the uncor- prosecutrix roborated of a who was an ad- perjurer many times, mitted appeal this is it. This the second time the facts embraced in the charge come before court. appeal, In the first cause 29,195, judgment No. we reversed the Joseph the St. jurisdiction subject Probate Court for want by that matter court. (1954), Wedmore v. State 233 545, 122 Ind. E.N. 2d 1. We have examined the record appeal judicial- properly of the first and take notice of Denny, what is therein contained. Clerk State 929; (1896), Fidelity Ind. 42 N. E. Rooker 454; 641, 651, 652, Trust Co. 177 N. E. Ind. In 665, 109 re Harrison 2d N. E. challenges the
Appellant’s motion for a new trial Upon sufficiency of sustain the verdict. evidence Nancy Reed, referred trial Marie hereinafter the second prosecutrix, that she was to as the testified substance 12, 1937; September that in the afternoon born Richards, she, Sunday, and Martha March Wedmore, Wed- Bauer, (Dick) Jack Caroline Richard house; at Holderman’s were more and Jack Holderman drinking wine girls been had that she and the other two drinking young been men had and beer and some of dancing; beer; they and were music had where bedroom took her to a appellant about 5:30 P.M. hour one-half In about her. he had intercourse with apartment. to the all of them left and went Wedmore Wedmore, Joyce apartment at While Wedmore estranged Wedmore, and her Carol sister wife Jack Murphy made a visit. Martha Richards days prosecutrix
Two later headquarters Soko where police Officer taken were prosecutrix Hartman threatened Policewoman School,” and then took her written state- Reform “with charged appellant had rela- sexual in which she ment home, Richard with her at Holderman tions later at her had intercourse with also Wedmore deny the attempted to home. The State never Wedmore com- threatened proscutrix was clear evidence Indiana Girls’ School. mitment produce any failed to whatever evidence any way as to inter- corroborated statement *15 outcry, made no she either Wedmore. She course with parte ex to complaint. coerced statement made no Her telling Reed, police Bauer and about Grace Martha any complaint, nor did not amount Caroline Bauer testify any people did the to the State have of these as had, incident. There examination nor was no medical any psychiatric examination, or examination was there any qualified give physician opinion to her as state- mental condition. Both show numerous records ments her under that oath she did not have sexual appellant with the At the intercourse his brother. confused, she second trial and when confronted with contradictory testimony hysterical. she her became day prosecutrix during The first testified the first trial, having seven times she denied had sexual relations appellant. with day The next she took the witness stand and said ap she did have with the intercourse pellant at home of Jack Holderman. Before took she the stand she crying. was outside the court room We hardly presume could appellant induced her change testimony. activities, As to the State’s point “there comes a where this Court should not be ignorant judges as men.” what we know Watts as 49, 52, 1347, Indiana 338 U. S. S. Ct. L. January Ed. 1805. On volun she tarily appellant’s went to the office counsel and executed an affidavit that Richard Wedmore never did any any place. have sexual relations with her at time at that, day November, 1953, Before on the 17th before Deputy Prosecuting Attorney executed an she affidavit given perjured had she Joseph in St. Probate that Richard had Court Wedmore had sexual intercourse her and that had he never at fact any time done so. February 17, 1954, again
On she went the office appellant’s counsel and executed an affidavit appellant “Jack did Wedmore not have sexual relations any date; with me on date or other and that he in any way way, sexually no molested me in or otherwise *16 (Italics supplied.) Neither visit to Mr. Patton’s office by Thus, was solicited him. by prosecutrix’ own testimony impeached, words her stands contradicted and perjured, only appellant toas but also as to his brother. grave danger permitting to the innocent in a sex
conviction to stand testimony on the uncorroborated prosecutrix experienced is conceded all the medical authorities field: “Psuedologia phantasticia is a mixture of lies imagination. with basis infrequently, Not this is the alleged sexual assault. they Girls assert raped, recounting
have been sometimes as true a story they or of heard, falsely naming have individuals describing Gray’s them.” Attorneys’ Textbook (3rd Ed.), §96.16, p. Medicine Wigmore, Dean in his Evidence, Treatise on Vol. (3rd Ed.), quotes following recognized §924a inter- national problem: medical authorities on the “ dangerous ‘The most prosecutions witnesses morality for mere foremost intensely youthful offences are the (often ones children) in whom the sex-instinct holds the place thoughts feelings. in their and This propensity erotic often can be detected in expression, the wanton facial motions, the sensuous speech. and the manner of But on the other hand one must not be deceived a madonna-like counte- girl nance that readily assume; such can nor convincing upturn eyes, with which she strengthen credibility. sure, seeks her To be the with a demeanor, course coupled of her sensuousness pert manner, and usually forward leaves no type thought.
doubt about her early Even in years can be seen in countenance and demeanor the symptoms of hussy-type, which in later glance recognize enable one at first the hardened prostitute. profuse they With shamelessly falsities speak of the Having coarsest sex-matters. come early practices, they into bad can weave these into their and decorate their narratives with just plausible It ...
the most details. bring picture in- into their that often witnesses near them even been dividuals who never worthy recklessly suspicion most on the that throw Monkemoller, “Psychology persons’.” Dr. Otto Testimony,” (Vol. Psychopathology of Biblio- IV Aschaffenburg Kriminalistik, ed. der thek B, §a6, Kriegsmann), Chap. p. 333. Part “ girl plausible unproved ‘Every who but enters *17 required psy- story chiatric rape of to have a should be know, you I have examination. else- As favoring myself publicly as where expressed psychiatric charged should uals who make criminal and those examination of criminals agree crime, you that this I with with and the individ- be extended to include some of charges, only rape of malpractice personal attacks. of but and other also belongs rape particular in think The reason I that psychologists, category is one known to in this namely, ingly well being raped are exceed- that fantasies may say women, almost indeed common one By they probably I mean universal. this that are judge women, may if from clini- that cal at one we our most consciously experience, more entertain or less fleeting time fantasies or or fears another being they a man. be attacked that are or will course, fan- such a normal who has Of woman reality, tasy it is so confuse with but does not easy their some neurotic to translate individuals memory and falsifica- into actual beliefs fantasies tions safeguard certainly I should think charge. placed upon type criminal this “ ” Menninger (Menninger .’ ‘. . . Dr. Karl A. ; Kan.) Topeka, Psychiatry Neurology, Clinic of MS and Sept. letter 1933. “ rape, perfectly unless there is ‘Accusations assault, open suspicion. are evidence of clear Necessarily always they open must be treated as purely suspicion is verbal one if accusation accu- unsupported corroborative evidence. Such doubly when it is sations are remembered difficult to deal with sustaining the medical evidence proverbially not or otherwise accusations is ” . .’ A. dependable inadequate. . Dr. William Interior, Supt. (U. Department of the St. "White S. Hospital, Washington, ;C.) Elizabeth’s ter D. let-MS. Sept. 7, “‘We, experi- who have had extensive criminal among ill, mentally ence frequently know how charged nothing sexual assault or claimed with supporting more substantial this belief than an un- unconscious, realized wish or deeply suppressed sex-longing insane to have a thwarting. person A need not be craving is intolerable or in reality, conflict person need not be seriously substitute for a mentally satisfying disturbed to find some suppressed wish, and self-denied appear nor to reality have such spite as a accepted oneself. This ais well mental mechanism. I, therefore, psychiatric believe that while examina- tion is desirable in cases, all impera- criminal it is ” every tive in charged.’ case where sexual assault is (Director Dr. F.W. Lorenz Psychiatric Institute, University Wisconsin) ; letter MS. Sept. 19, 1933. specific instances related Healy Dr. Wm. Mary Teeney Healy Wigmore in the same section of are too unduly extending detailed to cite here without opinion. Herzog
Dr. Alfred W. in his treatise Medical *18 Jurisprudence danger- also notice of the takes propensity falsely ous accuse an innocent man in some sex offenses: “Charges rape many in of are cases and false alleged testimony the victim should be scruti- very carefully. only charges
nized Not are false against often made complaining a man to whom the willingly, very frequently witness submitted against of but entirely party, purpose innocent for the shielding may the one who have had sexual in- tercourse with the female and caused her to become pregnant. [Page . . . 827.] Likewise, injuries “. . . some cases the
genital organs purposely of a child are made so rape as to fasten the crime of on some innocent person. [Page . . . 831.] being rape of “Accusations a favorite method of covering either one’s own sexual misconduct or for blackmail, frequently occurred that small has injured purposely by children were their mother simulating rape, by purpose for bruising the effects of dilating parts, destroying hymen, infecting gonor- vagina and even them with There are cases in which a mother discovers rhoea. vaginal discharge girl that her little either has age vagina at an from the bleeds when the first yet expected. may suspect menstruation is not a little ening child on innocent She interrogate sexual assault her child and girl frightening by by and either her or awak- pseudologia phantastica, child’s start romancing confessing sexual attack her, story which is without foundation. Thus an having person may be accused of com- girls rape. they mitted Little when have once told story generally only will to it and careful stick questioning baring will sometimes succeed in by impossible deceit details the crime related [Page the child. 845.] “Many rape have accusations been made against physicians and dentists. Most of these are charges purpose for the deliberate false of black- collecting money by settlement, mail or while other suit or charges rape are made individ- who, coming narcosis, volup- while out have uals honestly they tuous been dreams believe that raped. may happen hysterical Such [Pages also cases. . . .” 845-846.] recognized Even in the 1700’s when the treatment mentally placing jail ill was them in aor “mad- house,” experienced judges lawyers had observed grave dangers charged to the innocent when with a offense. sex admitted, “. . . is Where evidence of children is wished,
it much to be concurrent stances, conviction unsupported there should be some time, place and circum- fact; in order to make out and that the grounded solely should on the infant, accusation of an under *19 charge Hale, rape, is an discretion. The said proved, easy make, but hard to be accusation though accused, by party, to be defended harder Blackstone, on the Law innocent.” Commentaries (Gavit’s Edition), p. 840. by The American Bar Association its Committee (1937-38) Improvement Law of Evidence of the psychiatrists, experience of courts took note of the reported as follows: “ ‘Psychiatric Sex Examination Witnesses severe, very are penalties for sex-crimes Cases. severity very so, But the —justly cases. in most procedural precautions special penalty for the to calls condemnation protect innocent accused from testimony. by unreliable already psychiatry has made its bow “‘Modern courts, properly to the criminal introduced been examining by way of the mental condition invoking necessity for there is also a accused. But type of in a certain a certain witness its aid for charges. of criminal class “ held, (and say unanimously we ‘Today it is by experienced psychia- “unanimously” advisedly) complainant woman in offense a sex trists that by competent experts always examined be should from mental suffers some to ascertain whether she tendency, frequently found or moral delusion causing girls, of the young especially in distortion imagination in cases. sex “ fur- imperative nature of this measure is ‘The legal penalty fact that emphasized ther girl years (so- under sixteen with a intercourse heavy extremely “statutory rape”) is called —some- State, imprison- twenty years; in one life times imagination abnormal of an the erotic ment ! Thus may appearance an inno- send of attractive child warnings penitentiary for life. The to the cent man they are supported as profession, psychiatric cases, heeded be should thousands observed profession. our “ charges of- in all of sex recommend ‘We required to be fenses, complaining witness *20 by competent examined before psychiatrists trial ascertaining purpose
for the probable of credi- ” bility, Wigmore, report presented to be evidence.’ (3rd Ed.), Evidence §924a. Wigmore’s advice, Dean which this court now holds value, of no is as follows: is, however, “There at one situation in least chastity may which veracity, a direct connection have young girl a viz. when woman or testifies complainant against charged as man a awith sex- crime, rape, rape age, ual seduction, under assault. — psychiatrists amply Modern studied the be- young girls coming of havior before errant and women in all sorts of courts cases. Their
psychic complexes multifarious, partly are distorted defects, by partly by derange- inherent diseased instincts, partly by ments or abnormal bad social environment, partly by temporary physiological or by emotional conditions. One form taken these complexes contriving charges that of false of (let sexual offenses men. The us unchaste call it) mentality expression finds incidental but direct imaginary in the which of narration sex-incidents of narrator is the heroine or the victim. straightforward On surface narration is convincing. victim, however, and in The real too often men; respect such cases is the innocent for the sympathy naturally felt any a such a tribunal for wronged give helps easy female credit plausible tale. any judge any “No doubt a criminal of Court and prosecuting attorney can corroborate with in- stances from his own observation. But the lamen- thing table is that the orthodox rules Evidence prevent adequate probing in most instances mentality woman-witness, testimonial a so as to charges. Judging possible falsity reveal the of such merely reports appellate from the of cases in the courts, gone many one infer must that innocent men have prison falsity because of tales whose could exposed. injustice not be become the more And the situation of has extreme, because in some States age the so-called to 16 consent been raised or has making (thus consent immaterial below imprison- age) even life and in few States by an plausible tale may imposed; ment so innocent-looking girl may life- attractive, sentence Evidence lead to a accused, the rules for the because judge’s unacquaintance with (and the probing of permit adequate psychiatry) no modern veracity. the witness’ having insisted realist movement “The modern removing enveloped of romance which on all the veil days chivalry, now it is womanhood since judges to at The facts look the facts. allowable types occasionally exist female are that excessive there sexuality, just are as there perverted types; and these are often accom- male plausibility should panied which testimonial inquiry into Only taken face not be at its value. degree history *21 the the will reveal and mental social credibility. inquiry of Evidence This the law extent, rejecting ought the permit the to to fullest framed without of rules that were hindrance understanding of facts. these charge go judge a “No should ever let sex-offence complainant’s jury to history and the social unless female been makeup_ qualified physician. and mental examined by to a testified time the sin- “It awakened to is Courts believing injustice in possibilities of that lurk ister such a witness without careful scrutiny. psychiatric (3rd Wigmore, Ed.), ...” Evidence 3 §924a.1 246, 255, case, supra, 111 In the 232 Ind. N. Burton every 892, where E. 2d we “not case did hold have a relevant accusations due to sex fantasies 1. False parallel tims were executed on vic- trials where innocent Salem Witchcraft Starkey, fantasy testimony. Marion L. See Of women, p. young 2. these The in Massachusetts Devil notably Booth, presently few, Mary “A and Walcott Elizabeth others, manless, got and settled down married. Some still duller, put apparently at how time in these a loss their rumored, pleasures; days, turned, cer- flatter tain of it was to coarser history, them, explicitly named in went unmis- never , takably bad.” Village development “In where could he watched Salem against range, general to be a at close there was said revulsion good not to watch a wench at her harlotries them. It was good word and chaste had remember that on that harlot’s hanged.” pp. been Ibid 241. a charged sexual is offense psychiatric there should be a prosecutrix. many examination of the There are cases where the facts and circumstances leave no doubt of guilt accused, places of the . . .” This no undue upon State, require psychi- burden and does not prosecutrix atric examination her when testi- mony corroborated other facts circumstances in the record be had so the conviction would not upon alone, story experience her ages which the taking has demonstrated is often the too means of liberty life or anof innocent accused. case, supra,
The Burton
232 Ind.
111 N. E. 2d
prosecutrix
incompetent
did
hold a
not
testify.
incompetent
“An
witness is one who does not
law;
legally
requirements
able
answer
give
objection
qualified
testimony.
does not
go
person.”
itself,
but to the
Gilbert
evidence
88, 90,
App.
N. E.
Estate
Swain
What
the Burton case held was the uncorrobrated
prosecutrix
psychi
of a
who had not
had
credibility,
examination
atric
to test
was not sub
probative
evidence of
value
which a
stantial
properly
conviction in a
could
This can
sex offense
rest.
ground
raised
motion
new
trial on the
finding
verdict or
was not sustained
sufficient evi
dence. From the
I
discussion
have had with the mem
*22
the
bers of
bench
bar over
State I
the
believe
legal profession supports the rule of the Burton case.
sending
persons
The matter of
innocent
to
accused
penitentiary
legislative
is not one which should await a
remedy.
strong
The record in this case is about as
as
reaffirming
be
could
had for
the rule
the Burton case.
testimony
Here
stand
conviction must
sole
prosecutrix
proved
who
a
records here was
pathological
perjurer.
a
to be
liar and
shocking
The
aspect
most
proceedings
had
judgment
appeal
obtain the
now under attack in this
lies
through
in the
State,
representatives,
fact that the
its
knew it
rely upon
had to
the uncorroborated
prosecutrix
of a
who had.
perjury
committed
with reek-
against
less abandon
appellant
both
and his brother.
judgment
a
ought
permitted
Such
tainted it
so
not be
to stand. The
presumed
State must be
to have known
(May 5,
1953),
Burton State
892, supra,
N. E. 2d
been the
jurisdiction
had
law of this
for more than
trial, yet
two
before the second
it
eifort,
made no
goes,
as
as
far
this record
psychiatric
prosecutrix
examination
to determine
it
attempt
whether
was about
to send man to
prison
perjured
on
testimony.
If it did have such a
psychiatric examination, we must
assume that
showed
prosecutrix
psychopathic
to be a
liar. The State
may
justified
have assumed that
the end
as
means
concerned,
appellant
far as the
but we cannot
administering justice.
condone such a
Sylvester
rule for
205 Ind.
N.
E. 669. When
carrying
through
the State
prosecution
insisted
to its tainted
perjuries
conclusion after the
had been
discovered,
appears
its conduct
a face-
no more than
saving procedure.
duty
The State’s
to be fair
does
investigation
preliminary
end with its
filing
before the
charge.
long
aof
It continues as
as
conviction
only way
right
stands. The
court to do
justice
judgment
would be
reverse the
order
competent psychiatrist
so
new trial
some
can
conflicting
truth
determine wherein lies the
prosecutrix.
told
oath
stories
under
judgment
reversed.
should
Reported in