Wedmore v. State

143 N.E.2d 649, 237 Ind. 212, 1957 Ind. LEXIS 261

• Court: Indiana Supreme Court
• Decided: June 28, 1957
• Docket: 29,377
• Status: Published

Opinions

Bobbitt, J.

Appellant was charged by affidavit with having carnal knowledge of a female child under the age of sixteen years under Acts 1941, ch. 148, §3, p. 447, being §10-4201, Burns’ 1956 Replacement, tried by jury, found guilty of assault and battery,¹ and sentenced to the county jail for 180 days and fined in the sum of $1,000.

Two errors are assigned as follows:

1. The court erred in overruling appellant’s motion to discharge for lack of prosecution.

2. The court erred in overruling appellant’s motion for a new trial.

We shall consider the assigned errors in the order mentioned.

First: Appellant asserts that the trial court caused him to be held by recognizance bond beyond three terms of court in violation of Acts 1905, ch. 169, §220, p. 584, being §9-1403, Burns’ 1956 Replacement, by “failing to appoint and qualify a special judge under Rule 1-12” of this court.

We deem it unnecessary to detail here the proceedings had in the St. Joseph Superior Court for the selection of a special judge. It is sufficient to note that appellant filed a motion for a change of venue from the judge in the term in which he was arrested and entered his plea. The ensuing delays resulted from such motion.

Appellant, by his request for a change of judge, set in motion the chain of events which caused the delay in his trial. This delay was caused by his acts, hence he is not entitled to a discharge under §9-1403, supra. Sullivan v. State; Flick v. State (1939), 215 Ind. 343, 345, 346, 19 N. E. 2d 739; Colglazier v. State (1953), 231 Ind. 571, 575, 110 N. E. 2d 2; Shewmaker v. State (1956), 236 Ind. 49, 138 N. E. 2d 290.

The trial court did not err in overruling appellant’s motion for discharge.

Second: The sole question presented by the second assignment of error is the sufficiency of the evidence to support the verdict of the jury.

Considering the evidence most favorable to the appellee, the record discloses that Richard Wedmore and Jack Holderman picked up two girls, ages 14 and 15 years, respectively, under the false representation to the father of one of the girls that they were taking them to baby sit for Wedmore’s sister, telling the girls that they were going dancing and have a party. They proceeded to take the girls across the Michigan State line where they bought two cases of beer.

On their return they took one case of beer to the Wedmore apartment where they picked up appellant, Jack Wedmore, who at that time was separated from his wife. The three men and the two girls then went to pick up another girl for appellant. After picking up the third girl they all then went to the apartment of Jack Holderman where they drank beer and wine and danced. The prosecuting witness testified that about 5:30 p.m. appellant took her into the bedroom, which was off a hallway in the apartment, where he removed part of her clothing, and had sexual intercourse with her, the details of which, including the penetration, were fully related by the prosecuting witness.

This witness, in her statement to the South Bend police, made on March 31, 1953, which is in the evidence as State’s Exhibit “C,” related that she got to her brother’s apartment- about 8:30 p.m. on the day of the alleged act, and that she told her sister-in-law, Grace Reed, about what had happened, and that she also told the other two girls (Martha Richards and Caroline Bauer) who had been with her at the Holderman apartment.

Appellant asserts that there is not sufficient evidence of probative value to sustain the conviction herein because (1) the “case rests upon the testimony of a single witness who is so discredited on material matters by contradictory testimony as to render her testimony unworthy of belief.”; and (2) because the State took no steps to require a psychiatric examination of the witness to determine her probable credibility.

We shall consider these reasons in the order named. (1) The record discloses that the prosecuting witness, on or about September 25, 1953, called appellant’s sister by telephone to tell her that she “wanted to change my [her] story about Dick and Jack Wed-more.” ; and that on February 17, 1954, the prosecuting witness went to the office of appellant’s attorney and signed a statement reciting that appellant did not have sexual relations with her on March 30, 1953, “or any other date.”

There is also in the record statements by the prosecuting witness herein in which she said that she did not have sexual intercourse with Dick Wedmore, but on the occasion of each of these statements she stated, without equivocation, that there was nothing said at the time she made these statements relating to Dick Wedmore, about changing her story concerning Jack Wedmore, the appellant herein.

The prosecuting witness was 17 years of age at the time of the trial upon which this appeal is based. Whether or not she was telling the truth when she signed the statement in the office of appellant’s attorney, or on the witness stand at the time of the trial, was a question for the jury. The credibility of the witnesses herein and the weight of their testimony are questions for the jury, and this rule applies in an action for rape. Liechty v. State (1930), 202 Ind. 66, 74, 169 N. E. 466; Ritter v. State (1946), 224 Ind. 426, 427, 67 N. E. 2d 530.

It is not within the power of this court to determine the credibility of a witness or to say when a witness is telling the truth. Yessen v. State (1955), 234 Ind. 311, 315, 126 N. E. 2d 760. It is apparent from the verdict that the jury believed the prosecuting witness’ testimony given at the trial — this they had a right to do, and, in so doing, they could take into consideration the fact that the statement reciting that she did not have sexual relations with the appellant was signed by her in the office of appellant’s attorney at a time when only she and he were present, and also that such statement was witnessed by the attorney for appellant.

In determining her credibility as a witness for the State, and in support of her testimony, the jury also had the right to consider the fact that, at her first opportunity, the prosecuting witness told her sister-in-law and the other two girls who were at the Holderman apartment, about the incident which allegedly occurred in the bedroom. People v. Davis (1957), 10 Ill. 2d 430, 140 N. E. 2d 675, 680.

The jury is not required to consider the evidence in fragmentary parts, “ ‘but the entire evidence is to be considered, and the weight of testimony to be determined from the whole body of the evidence.’” Breedlove v. State (1956), 235 Ind. 429, 134 N. E. 2d 226, 232.

In our opinion there is sufficient evidence in the record before us to sustain the verdict of the jury.

(2) Appellant relies upon Burton v. State (1953), 232 Ind. 246, 111 N. E. 2d 892, to support his contention that the judgment of the trial court should be reversed because the State did not have the prosecuting witness examined by a physician before the trial.

As was true in the Burton Case, no question was raised in the trial court concerning the competency of the prosecuting witness herein to testify, nor was any request made by the appellant or his attorney that such witness be subjected to a psychiatric or any other medical examination.

There is no statutory or other law in Indiana which requires the State to assist a defendant in the defense of his case. If the defendant had any question as to the competency of the State’s witness, it was his duty to raise such question in the trial court at the earliest opportunity, and failing so to do any such question is waived. Pooley v. State (1945), 116 Ind. App. 199, 204, 62 N. E. 2d 484; Bingham et al. v. Walk et al. (1891), 128 Ind. 164, 173, 27 N. E. 483.

“. . . the overwhelming weight of authority indicates that ‘the question of the competency of a witness to testify, whether the objection is based on the ground of interest, relationship, infamy, or want of credit, incapacity to understand the nature of an oath, death of one of the parties to a contract, or other ground, comes too late when raised for the first time in the appellate court.’ 3 C. J., Appeal and Error, §740, p. 828, [4 C. J. S., Appeal and Error, §294] and cases cited. Indiana seems to be in line with the majority rule.” Pooley v. State, supra (1945), 116 Ind. App. 199, 204, 62 N. E. 2d 484.

We concur in the statement by Judge Draper in the dissenting opinion in Burton v. State, supra, at pages 260, 261, of 232 Ind., as follows:

“But no objection was made to the testimony of this child because she had not been cleared by a psychiatrist. None such could be made. Our legislature has not seen fit to require such as a condition precedent to the right to testify in court, and I do not believe this court has any right to impose it.

“I do not hold lightly • the language found in Wigmore’s Treatise on Evidence (3rd Ed.), Vol. 3, §924a, which is referred to in the majority opinion. I think it merits the careful consideration of the. General Assembly. But if the suggestions therein made are to become the law in Indiana, it should be made law by the legislature. Procedural methods and safeguards should be established and clearly pointed out. To say that a woman may not testify against a man in a sex case unless she first submits to a psychiatric examination covering, perhaps, a period of many months, in the absence of legislation requiring it, seems to me to be an unwarranted arrogation of authority which this court does not have.

* % * *

“I do not know whether the state undertook to determine whether this little girl was a ‘fantast.’ If so, I doubt whether the state would have had the right to prove it. I do know that the appellant did not see fit to inquire into that possibility on cross-examination.”²

What is said there by Judge Draper covers fully the situation in this case. It correctly states the prevailing rule on the subject and will be applied in the case at bar.

There is no statute in Indiana making provision for a psychiatric examination of a prosecuting witness in any case. Cf.: Chesterfield v. State (1924), 194 Ind. 282, 294, 141 N. E. 632; Cosilito v. State (1926), 197 Ind. 419, 424, 151 N. E. 129.

The question of stability and mental condition of the prosecuting witness herein concerned her competency and was a matter for the court to determine. Simpson v. The State (1869), 31 Ind. 90; The City of Fort Wayne v. Coombs et al. (1886), 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82; Dickson et al. v. Waldron (1893), 135 Ind. 507, 524, 35 N. E. 1, 24 L. R. A. 483, 41 Am. St. Rep. 440; Myers v. State (1922), 192 Ind. 592, 601, 137 N. E. 547, 24 A. L. R. 1196; Butler v. State (1951), 229 Ind. 241, 245, 97 N. E. 2d 492.

The prosecuting witness was 17 years of age at the time of the trial and it is readily apparent that she was a competent witness under the statute,³ and her credibility was a question for the jury. Holmes v. The State (1882), 88 Ind. 145, 147; Tyrrel v. State (1912), 177 Ind. 14, 97 N. E. 14; Jacoby v. State (1936), 210 Ind. 49, 199 N. E. 563; Thompson v. State (1946), 224 Ind. 290, 66 N. E. 2d 597.

Prior to Burton v. State, supra (1953), 232 Ind. 246, 111 N. E. 2d 892, the rule was well settled in Indiana that a conviction for rape may be sustained upon the uncorroborated testimony of a prosecuting witness, if such was sufficient to convince the trier of the facts beyond a reasonable doubt of the defendant’s guilt. Chesterfield v. State, supra (1924), 194 Ind. 282, 294, 141 N. E. 632; Cosilito v. State, supra (1926), 197 Ind. 419, 425, 151 N. E. 129; Abshire v. State (1927), 199 Ind. 474, 477, 158 N. E. 227; Thomas v. State (1949), 227 Ind. 42, 45, 83 N. E. 2d 788; Bramlett v. State (1949), 227 Ind. 662, 663, 664, 87 N. E. 2d 880.

We do not believe this court has the power or authority to require the State to support the testimony of a prosecuting witness in a sex case by requiring her to submit to a psychiatric examination, the report of which is to be presented in evidence, in order to sustain a conviction.

For the reason above stated, insofar as Burton v. State, supra, (1953), 232 Ind. 246, 111 N. E. 2d 892, purports to require that in any sex case the complaining witness be required to be examined, before testifying, by a psychiatrist for the purpose of examining her social history and ascertaining her probable credibility, the report of such examination to be presented in evidence, it is disapproved and overruled.

This is consistent with the rule that the credibility of a witness is a question for the trier of the facts.

In this case if timely objection to the competency of the prosecuting witness had been made, it would have been the duty of the court to make such an examination as would satisfy it as to her competency or incompetency. 58 Am. Jur., Witnesses, §134, p. 101; and §211, p. 144.

The prosecuting witness in this case, being 17 years of age, took the witness stand clothed with the presumption of competency, and the burden of establishing the contrary was upon the defendant-appellant. 58 Am. Jur., Witnesses, §210, p. 144.

We recognize the problem discussed by Professor Wigmore in Vol. Ill, §934a, p. 485, of his Treatise on Evidence, however, we have been unable to find, even in the cases cited under §934a, supra, where the State was either required or permitted to introduce evidence as to the mental capacity or competency of the prosecuting witness in a criminal case involving a sex crime. Cf.: State v. Teager (1936), 222 Iowa 391, 269 N. W. 348; State v. Pelser (1917), 182 Iowa 1, 163 N. W. 600; Miller v. State (1930), 49 Okla. Cr. 133, 295 Pac. 403; State v. Driver (1921), 88 W. Va. 479, 107 S. E. 189, 15 A. L. R. 917; Goodwin v. State (1902), 114 Wis. 318, 90 N. W. 170; Strand v. State (1927), 36 Wyo. 78, 252 Pac. 1030.

In our opinion the court has no power on request of the State, to compel a prosecuting witness in a criminal case to submit to a medical examination and, on its behalf, present the findings of such an examination to the jury via the testimony of the examining physician, for the purpose of impeaching or supporting the testimony of such witness.

If the court, within its sound discretion, on request of the defendant-appellant herein, had ordered such an examination appellant would thereby have waived the right to object to the report of the examining physician if it was adverse to him, and at the same time he would have been given all the protection against fantasy and fabrication on the part of the prosecuting witness as proposed by Professor Wigmore. People v. Cowles (1929), 246 Mich. 429, 224 N. W. 387. Also, as a result of this procedure, there could be no complaint that either the State or the court had dictated the course of the accused’s defense or had been a party to the admission of objectionable evidence which might materially influence the jury adversely to the defendant.

Finally, Professor Wigmore, himself, recognizes that his proposal for psychiatric examination in sex crimes is a matter for the Legislature and not one within the power of the courts when he sets out in full in Wigmore on Evidence, Vol. III, §924b, p. 467, a proposed statute for the protection of the injustices which he so vigorously proclaims.

Third: We are asked to consider evidence in the record in the first trial, Wedmore v. State (1954), 233 Ind. 545, 122 N. E. 2d 1, but which is not in the record in the case at bar. It is also proposed that we now weigh the evidence as it appeared in the record in the first trial, to determine the credibility of the prosecuting witness in the case now at bar.

It is asserted that “Both records show numerous statements by her under oath that she did not have sexual intercourse with the appellant or his brother.”,* and, further, “The first day the prosecutrix testified during the first trial, seven times she denied having had sexual relations with the appellant. The next day she took the witness stand and said she did have intercourse with the appellant at the home of Jack Holderman. Before she took the stand she was outside the court room crying.” (Our italics.)

The record in this case, and upon which our decision here must rest, shows one, and only one, statement by the prosecuting witness that she never had sexual relations with the appellant. The testimony in the first trial is not a part of the record in the second trial or in the appeal now before us.

It is further suggested that we examine the record of the first appeal and take judicial notice of what is therein contained. The cases relied upon by the proponent of this unusual procedure, to sustain a search outside the record for something on which to reverse the judgment of the trial court, are not authority for considering evidence which was before us in the first appeal but does not appear in the record in the case at bar.

It is true that we take notice of a former appeal and the judgment rendered therein, but we do not judicially note the evidence in one action when we are considering another. Cf.: Yessen v. State, supra (1955), 234 Ind. 311, 126 N. E. 2d 760. The case at bar — even though it is a second appeal involving the same people and offense — comes to us as an entirely new case; and we cannot use facts which may be in the record in the first trial, upon which to predicate error in the second trial, unless such evidence has, by proper procedure, been made a part of the record in the second trial, and is included in the Bill of Exceptions in the second appeal. That is not the case here. None of the evidence referred to above is to be found in the record in the case now before us, and even if it were we could not weigh it to determine when a witness is telling the truth. In this case that was a matter for the jury.

Numerous decisions of this court, without exception, since its creation, have held that we will not search the record to reverse. We have no right or authority to go de hors the record in search of a reason to reverse this case.

In a further effort to find some error upon which the judgment herein might be reversed, it is asserted that, “The State failed to produce any evidence whatever that in any way corroborated her statement as to intercourse with either Wedmore. She made no outcry, she made no complaint.”

If corroborating evidence is necessary, it is to be found from a consideration of all the evidence together with proper inferences which may be drawn therefrom. As to the prosecuting witness making no outcry or complaint, the evidence is such that the jury might even have inferred that she was a willing participant. However, these matters form no element of the crime when the charge is statutory rape. Caudill v. State (1946), 224 Ind. 531, 536, 69 N. E. 2d 549.

For the reasons above stated the judgment of the trial court will be affirmed.

Judgment affirmed.

Arterburn, C. J., Landis and Aehor, JJ., concur.

Emmert, J., dissents with opinion.

1 . Any touching of the person of a female child under the age of sixteen years with the intent to have sexual intercourse with her, is in legal contemplation without her consent. Caudill v. State (1946), 224 Ind. 531, 536, 69 N. E. 2d 549.

2 . It is of interest to note that this court has held that the competency of a six-year-old child could not be referred to someone other than the court itself to determine. Simpson v. The State (1869), 31 Ind. 90.

The Georgia Supreme Court held in Jeffers v. State (1916), 145 Ga. 74(5), 88 S. E. 571, that a medical expert, after examination of the prosecuting witness on a charge of rape, was properly permitted to state his opinion as to her mental development, and to testify that it was considerably below the average, and that he regarded her as a child. However, the record does not show at whose request the examination was made.

It has also been held that the court has no power to compel a witness in a criminal ease to submit to a medical examination to determine whether or not she was afflicted with hysteria, on the ground that to do so would be an unwarranted invasion of her right of personal liberty. Goodwin v. State (1902), 114 Wis. 318, 90 N. W. 170.

In a case where there was no evidence tending to show that the prosecuting witness on a charge of incest, who was under the age of consent, was physically or mentally diseased, or that her memory had been affected by her early development, .it was held that testimony of a medical expert, offered to impeach the witness, as to- the effect of premature sexual development on the mental development of a child, was properly excluded. State v. Pelser (1917), 182 Iowa 1, 163 N. W. 600.

3 . Acts 1905, ch. 169, §235, p. 584, being §9-1603, Burns’ 1956 Replacement; Acts 1881 (Spec. Sess.), ch. 38, §274, p. 240, being §2-1713, Burns’ 1946 Replacement; Acts 1881 (Spec. Sess.), ch. 38, §275, p. 240, being §2-1714, Burns’ 1946 Replacement; Jordan v. The State (1895), 142 Ind. 422, 41 N. E. 817.