Summary
In Butler v. State (1950), 229 Ind. 241, 97 N.E.2d 492 we noted that the separating of witnesses at a trial is wholly in discretion of a trial court.
Summary of this case from Perry v. GossOpinion
No. 28,702.
Filed March 27, 1951.
1. CRIMINAL LAW — Appeal — Briefs — Defects — Supreme Court Overlooked Procedural Defects Where Serious Crime Was Charged. — On appeal from a conviction of rape, the Supreme Court overlooked certain procedural defects in appellant's brief in order to decide the questions on the merits because of the seriousness of the offense charged and the severity of the penalty imposed. Burns' 1942 Replacement, § 10-4201. p. 244.
2. CRIMINAL LAW — Trial — Venue — Change of Venue From County — Discretionary With Trial Court. — In a criminal prosecution for an offense not punishable by death, the granting of a change of venue from the county is discretionary with the trial court, and its ruling will not be disturbed unless there is an abuse of such discretion. Burns' 1942 Replacement, § 9-1305. p. 244.
3. CRIMINAL LAW — Trial — Venue — Change of Venue From County — Discretionary With Trial Court — No Abuse of Discretion in Denying Change. — Where there was no showing that general excitement, bias or prejudice existed in the county against a defendant charged with rape, over and above the defendant's verified motion for a change of venue from the county, which was in the usual form, denial of the motion by the trial court did not constitute an abuse of discretion. Burns' 1942 Replacement, § 9-1305. p. 244.
4. CRIMINAL LAW — Appeal — Record — Conclusiveness and Effect — Record Indicated Witness Was Duly Sworn Regardless of Conflicting Testimony. — On appeal from a conviction of rape where the bill of exceptions, approved and signed by the trial judge and filed by the appellant, showed that the prosecuting witness, a girl seven years of age, was duly sworn to testify the truth, the Supreme Court could not say that she was not properly sworn as a witness, even though she testified on cross-examination, in answer to a leading question, that she did not say anything when the court gave the oath to the witnesses. p. 245.
5. CRIMINAL LAW — Evidence — Competency of Witnesses — Children — Trial Court To Determine Competency. — In a criminal prosecution the grave responsibility for determining the competency of a child as a witness rests on the trial court, and when that court determines a child is competent to testify, a manifest abuse of discretion is required to authorize interference by the Supreme Court on appeal. Burns' 1946 Replacement, § 2-1714. p. 245.
6. CRIMINAL LAW — Evidence — Competency of Witnesses — Children — Trial Court To Determine Competency — No Abuse of Discretion. — In a prosecution for rape of a seven year old child tried by the court, the trial court did not err in hearing and considering the testimony of the girl after she stated that she knew what it meant to tell the truth and that she understood that if she did not tell the truth the court would have to punish her, although she did not know what punishment would be inflicted. Burns' 1946 Replacement, § 2-1714. p. 245.
7. CRIMINAL LAW — Trial — Continuance — Discretionary With Trial Court — Evidence To Be Procured Not Shown To Be Material — Refusal Not Error. — In a criminal prosecution an application for a continuance is addressed to the sound discretion of the trial court, and where a continuance is requested to allow time to procure evidence not shown to be material to the case, refusal of the application is not error. p. 246.
8. CRIMINAL LAW — Trial — Continuance — Discretionary With Trial Court — Testimony To Be Procured Collateral and Hearsay — Refusal Not Error. — In a criminal prosecution it was not error to deny defendant's application for a continuance to procure testimony of a witness which, if available, would be entirely collateral to the issue of defendant's guilt or innocence, and would be necessarily hearsay except as to one fact which, whether true or not, could not have affected the result. p. 246.
9. CRIMINAL LAW — Trial — Separation of Witnesses — Separation Granted as Favor — Court May Permit Witness To Testify After Violation. — In a criminal prosecution the separation of witnesses is not required by common law or statute and is not granted of right but as a favor, and even though an order for separation is made, it is not improper for the trial court to permit the prosecuting witness to be present during the examination of other witnesses and to testify. p. 246.
10. CRIMINAL LAW — Trial — Separation of Witnesses — Not Error To Permit Prosecuting Witness To Remain in Court After Separation Order. — In a criminal prosecution for rape of a seven year old girl, it was not error for the trial court, after granting a motion to separate the witnesses, to permit the girl to remain in the courtroom with her mother during the trial. p. 246.
11. CRIMINAL LAW — Trial — Separation of Witnesses — Testimony of Prosecuting Attorney Properly Allowed. — In a criminal prosecution for rape where the trial court granted a motion to separate the witnesses, there was no abuse of discretion in permitting the prosecuting attorney, who had been present throughout the trial, to give testimony in rebuttal which tended to impeach one of the defendant's witnesses, because the prosecuting attorney could not well know in advance that it would be necessary for him to give such testimony, and he is a sworn officer of the court who is entitled, in the discretion of the trial judge, to be heard. p. 247.
12. CRIMINAL LAW — Evidence — Witnesses — Consultation Between Counsel and Witnesses — Prosecuting Attorney May Interview Witnesses. — It is not improper for a prosecuting attorney to interview the State's witnesses before they testify, the time, place and manner of such interviews being largely within his own discretion. p. 247.
13. CRIMINAL LAW — Evidence — Witnesses — Consultation Between Counsel and Witnesses — Prosecuting Attorney May Interview Witnesses — No Abuse of Discretion Shown. — In a criminal prosecution for rape, there was no showing that the prosecuting attorney abused his privilege of interviewing the witnesses for the state before they testified. p. 247.
14. RAPE — Evidence — Weight and Sufficiency — Sufficient To Support Conviction. — In a prosecution for rape of a seven year old girl, tried by the court without a jury, the evidence was sufficient to support a finding of guilty. Burns' 1942 Replacement, § 10-4201. p. 247.
From the Hendricks Circuit Court, Horace L. Hanna, Judge.
Ernest L. Butler was convicted of raping a seven year old female child, and he appeals. Affirmed.
Lawrence C. Ammon, of Indianapolis, and J. Creighton Ball, of Danville, for appellant.
J. Emmett McManamon, Attorney General; Frank E. Coughlin and John Ready O'Connor, Deputy Attorneys General, for appellee.
The appellant was charged by way of a grand jury indictment with raping a seven year old female child. See Burns' 1942 Replacement, § 10-4201. He waived jury trial, was tried by the court, and sentenced to a term of life imprisonment.
To reach the merits we must overlook certain procedural defects and the shortcomings of appellant's brief. Because of the nature of the offense charged and the severity of the penalty 1. imposed, we shall consider and decide each question attempted to be raised by the appellant.
The appellant filed a motion for change of venue from the county based on general excitement, bias and prejudice alleged to exist against him in Hendricks County. The motion was 2, 3. overruled. In a case not punishable by death, the granting of a change of venue from the county in a criminal case is discretionary with the court. Burns' 1942 Replacement, § 9-1305. Unless there is an abuse of such discretion, the ruling of the trial court will not be disturbed. Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462; Sammons v. State (1936), 210 Ind. 40, 199 N.E. 555. No showing of general excitement, bias or prejudice was made or attempted to be made over and above the filing of the verified motion for change of venue, which was in the usual form. We have examined the record with great care, and can find nothing even slightly supportive of appellant's assertion that a situation existed under which the refusal of a change of venue from the county amounted to an abuse of discretion.
At the time of trial the child was seven years old. She was permitted to testify concerning the appellant's conduct toward her on the date in question and on several previous 4-6. occasions. By statute in this state children under ten years of age are not competent witnesses unless it appears that they understand the nature and obligation of an oath. Burns' 1946 Replacement, § 2-1714. In this case it appears that the child attended church and Sunday school about twice a month. She said she knew what it meant to tell the truth and understood that if she did not tell the truth the court would have to punish her; although she did not know what punishment would be inflicted. On direct examination she said she answered "yes" when the court "told all the witnesses to standup and tell the truth." On cross-examination, in answer to a leading question, she said she did not say anything when the court "gave the oath and asked the witnesses to tell the truth." The bill of exceptions, approved and signed by the trial judge, and filed by appellant, shows that she was duly sworn to testify the truth, the whole truth, and nothing but the truth. We cannot say that she was not properly sworn as a witness. We have carefully read the transcript. Her testimony, while extremely damaging to the appellant, was clear and direct, and her answers were responsive to the questions put to her. The grave responsibility for determining the competency of a child as a witness rests on the trial court. He alone has the opportunity to observe the child's attitude, appearance and manners, and judge of her intelligence and candor. When the trial court determines that a witness is competent, it would require a case of manifest abuse of discretion to authorize this court to interfere. Tyrrel v. State (1912), 177 Ind. 14, 97 N.E. 14; Batterson v. The State (1878), 63 Ind. 531. We hold that the court did not err in hearing and according to her testimony such weight and credit as it seemed to merit.
During the progress of the trial the appellant orally moved for a continuance to procure the testimony of a Mr. Hadley. The trial court was not informed as to the nature of the testimony 7, 8. which appellant expected him to give. Applications for continuance are addressed to the sound discretion of the court, and it is not error for a trial court to refuse an application for a continuance where the evidence sought is not shown to be material to the case being tried. Mack v. State (1932), 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349; Smith v. The State (1892), 132 Ind. 145, 31 N.E. 807. Mr. Hadley's name had been mentioned several times during the trial in a context which revealed that his testimony, if available, would be entirely collateral to the issue of appellant's guilt or innocence. It would necessarily have been hearsay except as to one fact which, whether true or not, could hardly have affected the result.
A motion was made and granted to separate the witnesses, but the little girl was permitted to remain in the courtroom with her mother. One rebuttal witness heard all of the testimony 9, 10. in the case, and several rebuttal witnesses were present when the prosecuting attorney discussed certain collateral phases of the case with the other rebuttal witnesses. The separation of witnesses at a trial is wholly within the discretion of the court. It is not required by statute or common law. It is granted not of right, but as a favor. When an order for separation is made, it is not improper to permit the prosecuting witness to be present during the examination of the other witnesses. If the order is violated, it is still within the discretion of the court to permit the witness to testify. Romary v. State (1945), 223 Ind. 667, 64 N.E.2d 22; Coolman v. State (1904), 163 Ind. 503, 72 N.E. 568; Porter v. The State (1850), 2 Ind. 435.
We think it was within the sound discretion of the court to permit this child of tender years to remain with her mother, in the courtroom, during the trial. Certainly in this case no 11. harm is shown to have befallen the appellant because of it. The rebuttal witness who remained throughout the trial was the duly elected prosecuting attorney who prosecuted the case. He gave testimony which tended to impeach one of the witnesses for the defendant. He could not well have known in advance that a witness for the defense would give such testimony that it would become necessary and proper for him to testify concerning facts he had learned in his official capacity. He was a sworn officer of the court and entitled, in the discretion of the trial judge, to be heard. The record discloses that the trial court, in ruling on the question under consideration, had the applicable rules in mind and made his ruling carefully, and in the exercise of a sound discretion. We find no abuse of discretion in this regard.
It is not improper for the prosecuting attorney to interview the state's witnesses before they testify. The time, place and manner in which he does so, and in whose presence he 12, 13. does it, is largely a matter within his own discretion. His privilege in that respect might conceivably be abused, but no abuse of it is shown to have occurred here.
There remains the question of the sufficiency of the evidence to support the finding of guilty. The evidence shows that the appellant took the little girl from the trailer in which 14. she lived to a dump in his truck. She testified in detail, in simple but graphic language, how the appellant there accomplished his purpose. When he brought her home, her thighs and underclothing were bloody, and the doctor who examined her later the same evening testified the nature, extent and location of the laceration and the probable degree of penetration. It was not disputed that the girl was with the appellant from the time he took her from her home until he returned her there. We think it is unnecessary to recite the revolting details of this occurrence. Each of the elements of the crime, and the fact that the defendant committed it, is established by the evidence. The trial court heard and saw the witnesses. We have before us only the typewritten page. From a most careful reading of it we are constrained to say that in our opinion the finding is amply supported by the evidence. The case was carefully and fairly tried and determined. We find no reversible error.
Judgment affirmed.
NOTE. — Reported 97 N.E.2d 492.