Jones v. State

232 N.E.2d 487, 249 Ind. 621, 1968 Ind. LEXIS 749

• Court: Indiana Supreme Court
• Decided: January 10, 1968
• Docket: 30,911
• Status: Published

Opinions

Arterburn, J.

This is an appeal from a conviction of the crime of statutory rape on one Judy Kay Vickery, age 15 at the time of the alleged offense.

Appellant was tried by a jury which found him guilty, and he was sentenced accordingly.

It is first contended that the evidence is not sufficient to sustain the finding of guilty. The main contention is made in this connection on the testimony of the prosecuting witness that she “had intercourse with” the appellant-defendant. The case of Ritchie v. State (1963), 243 , 189 N. E. 2d 575 is cited in support of this contention. The Ritchie case involved a nine year old child who used this term without any description as to what constituted such an act. In the case before us, this prosecuting witness described the time and place and said that “he inserted his privates into my body.” The evidence also shows that this prosecuting witness was engaged generally in prostitution, making $400.00 or $500.00 a week, as the evidence revealed. She was not a novice with reference to sexual intercourse and knew what she was talking about. The case cited is not in point. Flinn v. State (1919), 188 Ind. 531, 124 N. E. 875.

It is next argued that the court should have permitted the appellant to withdraw his plea of not guilty in order to file a motion to quash. The motion to quash is presented to us as based upon the ground that the charge was duplicitous, since the affidavit charged “did then and there unlawfully and feloniously make an assault in and upon one Judy Kay Vickery.” It is argued that the affidavit included a charge of assault and battery to rape. In Richie v. State (1877), 58 Ind. 355, 358, this court said:

“Every charge of rape necessarily includes a charge of assault and battery, and, under a charge of rape, the jury may find the defendant not guilty of that offence, and guilty of assault and battery.”

The assumption of the appellant seems to be that assault and battery and rape are separate and distinct offenses, to which we cannot agree.

In Martin v. State (1964), 246 Ind. 43, 201 N. E. 2d 42, 45, it is said:

“. . . In argument, appellants contend duplicity in that two separate and distinct offenses, being assault and rape, are charged in count two. This court has upheld similar charges of rape. (Cases cited).”

We therefore find that the court committed no error in refusing to permit the withdrawal of the plea of not guilty in order to file a motion to quash, since the motion to quash, on the grounds stated, should have been overruled, and the appellant was thus not thereby prejudiced.

Finally, it is contended that appellant should have been permitted to introduce the juvenile court records of the prosecuting witness, Judy Kay Vickery. Statutes of Indiana provide that the juvenile records are not to be considered as criminal records and are not to be revealed to the public generally. It is stated:

“No_ adjudication upon the status of any child in the jurisdiction of the court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any child be charged with or convicted of a crime in any court, except as provided in section 14 [§ 9-3214] and section 23 [§ 9-3223] of this act. The disposition of a child or any evidence given in court shall not be admissible as evidence against the child in any case or proceeding in any other court....” Acts 1945, ch. 356, § 15, p. 1724; 1957, ch. 356, § 2, p. 1040, being Burns’ Ind. Stat. Anno. § 9-3215 [Supp. 1967].

In Noel v. State (1966), 247 Ind. 426, 215 N. E. 2d 539, we held the court did not err in excluding juvenile court records in a charge of “enticing a female into an immoral place.”

If the purpose of the introduction of these records is to show the prosecuting witness was a person of immoral character to affect her credibility, there was more than sufficient evidence introduced on that point. The witness admitted she was a shoplifter as well as a prostitute. Her credibility was a question for the trial court — not for us.

The judgment of the trial court is affirmed.

Lewis C. J., Mote and Hunter, JJ., concur.

Jackson, J., concurs with opinion.