This was a criminal prosecution brought by indictment against appellant, Herman Woods, charging him in two counts with rape of and incest with his fifteen-year-old daughter, Sandra Woods.
The indictment filed in this case in the Gibson Circuit Court, on the 8th day of October, 1965, omitting caption and formal parts, reads as follows:
Appellant's contention that the grand jury which returned the indictment in this case was improperly selected and impaneled is based upon an erroneous interpretation of the law.
The relevant statutes are as follows:
Appellant contends, apparently, that the grand jury members were not selected "as nearly as possible" in proportion to the population of each commissioner's district, and upon that premise bases his conclusion that the statute was not complied with and his rights have been prejudiced.
In support of this specification, appellant states that the Gibson County population, as of 1960, was 29,949, and then proceeds to break down the total between the various commissioner's districts as follows:
First District 4,914 Second District 11,951 Third District 13,084
Appellant then contends that the members of the grand jury from which the indictment of appellant emanated were not selected according to proper apportionment principles, in that some grand jurors represented larger population masses than others. This distribution, he says, is not in compliance with § 4-3304, supra, requiring jurors to be selected "as nearly as possible in proportion to the population in each county commissioner's district."
Appellant's view of what the statute requires is erroneous. It is not the drawing of prospective jurors immediately preceding a term of court which § 4-3304, supra, requires to be in proportion to population distribution, but the original yearly selection of a pool of names from which
It should be noted that Ind. Anno. Stat. § 4-3320, supra, under which prospective jurors for a particular term of court are selected, contains no requirement that such selection be made in proportion to population distribution. So long as the apportionment requirements are followed in selecting the entire yearly pool of prospective jurors, as required by § 4-3304, supra, no apportionment violation of § 4-3320, supra, will arise, even if all the jurors on a particular panel reside in the same district. See Harrison v. State (1952), 231 Ind. 147, 165, 106 N.E.2d 912.
The record in this case shows that the jury commissioners selected a total of 1090 names from which juries were to be selected for the various terms of court in the calendar year 1966. So far as can be determined from the record, those names were selected as much as possible in accordance with the population distribution of the various districts, and the trial court so found.
Not only does the record reveal substantial compliance with the statutory provisions above-quoted, but also a complete absence of irregularities of the nature relied upon by appellant. Since there was substantial compliance with the statutory requirements of jury selection, appellant cannot show prejudicial error in the refusal of the trial court to sustain his plea in abatement. Rudd v. State (1952), 231 Ind. 105, 107 N.E.2d 168; Harrison v. State, supra; Anderson v. State (1941), 218 Ind. 299, 32 N.E.2d 705.
Appellant cites Rudd v. State, supra, in support of his position, but that case is of no assistance to him since we find that there was substantial compliance with §§ 4-3304 and 4-3320, supra.
Appellant contends that the court below erred in overruling his motion to quash the indictment as set forth above. As to Count I he contends that both assault and battery and the
It has long been settled law in Indiana that where two or more distinct offenses are charged in the same count of an indictment or affidavit, such duplicity is fatal upon the making of a motion to quash. Joslyn v. State (1890), 128 Ind. 160, 27 N.E. 492. However, it was recognized in Dickinson v. State (1880), 70 Ind. 247, that where, in technical terms, a defendant is charged with two crimes in the same count and one of the crimes charged is an included offense in the other crime charged, there is not such duplicity as requires the granting of a motion to quash.
Every charge of carnal knowledge of a female child who has not reached the age of consent, of necessity, includes within it a charge of the lesser offenses of assault and battery. Caudill v. State (1946), 224 Ind. 531, 69 N.E.2d 549; see also Ritchie v. State (1877), 58 Ind. 335. It is impossible to charge a defendant with the crime of rape of a female child under the age of sixteen (16) years without also, expressly or impliedly, charging him with the lesser offenses of assault and assault and battery. Therefore, appellant's motion to quash Count I of the indictment was not well-founded and was properly overruled.
Appellant next contends that the trial court committed error in overruling Count II of the indictment. He contends that Count II is defective in that it fails to charge that Sandra Woods, the prosecutrix, had knowledge of the fact that the person with whom she was having sexual intercourse, the appellant, was her father.
The statute under which the charge of incest is made, in pertinent part, reads as follows:
As the statute itself reveals, therefore, it was not necessary that Count II contain an allegation that Sandra Woods, knew appellant to be her father. It was only necessary to allege that appellant, the parent, have knowledge of the relationship that existed between himself and Sandra Woods, with whom he was accused of having incestual sexual intercourse. See Williams v. State (1851), 2 Ind. 439.
Therefore, appellant's motion to quash Count II of the indictment was properly overruled.
Appellant's third allegation of error is that the trial court erred in admitting into evidence testimony of the prosecuting witness to the effect that she and appellant had engaged in acts of sexual intercourse several times prior to the act charged in the indictment. Appellant contends that he was gravely prejudiced by the introduction of such testimony, and the failure of the trial court to grant him a continuance when such testimony was sought, for the reason that appellant was relying on his ability to establish an alibi defense to the specific act charged. He argues that such defense was effectively nullified by the introduction of prior criminal acts, even though the alibi itself was, he contends, established.
The relevant alibi statutes provide:
Both sides closely complied with Indiana's "alibi statutes" in this case. Ind. Anno. Stat. § 9-1631, supra. After notice of appellant's intention to offer an alibi defense was filed, the State produced a statement that the alleged offense in this case occurred on the first day of May, 1965, between the hours of 1:00 P.M. and 4:00 P.M., off a gravel road approximately 6 miles northwest of the City of Princeton, in Gibson County, Indiana. At trial, appellant introduced evidence tending to show that he was busy working all day on May 1, 1965, always in the presence of other persons, and that the vehicle in which the prosecuting witness testified the act was done never was driven by anyone on that day.
It has been recognized at least twice by this Court that where time is not of the essence of the offense, even though the allegation specifies the crime to have occurred on a specific date, the State may prove that the crime occurred at any time prior to the filing of the affidavit or indictment and within the statutory period of limitations. However, these same cases recognize that this general rule yields to a requirement of specific proof where the "alibi statutes", supra, are invoked. Stallings v. State (1953), 232 Ind. 646, 114 N.E.2d 771; Evans v. State (1946), 224 Ind. 428, 68 N.E.2d 546. Where there is a substantial variation between the time of the crime charged in the indictment or affidavit, and the time of the crime as shown by the State's evidence, and defendant is relying upon an alibi, it appears that upon timely motion by defendant a continuance should be granted. Stallings v. State, supra; Note, Criminal Law: Statutory Regulation of Alibi Defense Through Notice Requirements, 30 Ind. L.J. 106 (1954-55).
The other relevant body of law involves the admissibility at trial of evidence of prior criminal acts.
The general rule in Indiana is that evidence of separate, independent and distinct crimes is inadmissible to establish the defendant's guilt of the crime charged except to show intent, motive, purpose, identification, or a common scheme or plan. Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629, opinion filed March 1, 1968, cause number 30910; Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570.
In Meeks v. State, supra, it was also recognized that evidence of prior crimes is inadmissible in rape cases where the act charged has been proved or admitted and the only issue concerns the consent of the prosecutrix.
In Lovely v. United States, 169 F.2d 386 (4th Cir.1948), which was cited and quoted with approval in Meeks v. State,
In this case, there is obviously no issue as to identity, guilty knowledge, motive or intent or common scheme. But the testimony of the prosecuting witness in the case at bar that her father had engaged in sexual intercourse with her on several occasions previous to that charged in the indictment falls squarely within the exception to the general rule as to the admissibility of prior criminal acts in cases involving a "depraved sexual instinct."
This view is in accordance with long-standing Indiana case law to the effect that evidence of prior similar acts is admissible in prosecutions for incest. Lefforge v. State (1891), 129 Ind. 551; State v. Markins (1884), 95 Ind. 464.
Neither was such evidence required to be excluded, nor was the court under a duty to grant a continuance because of appellant's reliance upon an alibi defense since the only purpose for which the testimony as to the prior similar acts could have been considered by the jury was to determine whether such evidence increased the probability of appellant's guilt by connecting him with other crimes of the character charged. Lovely v. United States, supra.
This instruction, in view of the actual state of the law in Indiana, was far more favorable to appellant than it was required to be. Therefore, appellant's claim of prejudicial error in regard to the evidence of prior criminal acts is not well founded.
Furthermore, it should be noted that there would be dire side effects were we to accept appellant's contention that evidence of prior criminal acts nullifies the effect of any alibi defense put forth by appellant, even though such evidence would be admissible in the absence of an alibi
Appellant's final contention is that the evidence produced by the State is insufficient to support the verdict of the jury. In this regard, appellant emphasizes that several witnesses testified in support of his alibi defense, and that there was no direct corroboration of the testimony of Sandra Woods.
On appeal from a conviction in a criminal case, the presumptions are in favor of the trial court and this Court, in determining the sufficiency of the evidence, will only consider the evidence most favorable to the State and all reasonable and logical inferences that may be adduced therefrom. Epps v. State (1963), 244 Ind. 515, 192 N.E.2d 549.
The rule has been 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 facts beyond a reasonable doubt of defendant's guilt. Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649 and cases cited therein. This rule is also applicable to cases where incest is charged.
The evidence, viewed most favorably to the State, reveals the following:
Sandra Woods, the prosecuting witness, testified that on the day in question her father, appellant, picked her up in the business district of Princeton, Indiana. She said they then drove outside the city and turned onto a country road. After driving down that road for about 2 miles, her father stopped
Sandra testified that such episodes of sexual intercourse with her father had occurred several times prior to May 1, 1965. On one such occasion, her sister, Mary Kay had been in the car at the time. Mary Kay corroborated this testimony. Several of Sandra's sisters and step-sisters testified that they also had had sexual intercourse with appellant living in his house.
Without delving into further detail, we hold that the record, when viewed most favorably to the State, as outlined above, discloses sufficient substantial evidence of probative value and reasonable inferences to be drawn therefrom to justify the finding and judgment of the trial court. Reno v. State (1967), 248 Ind. 334, 228 N.E.2d 14.
Even though several witnesses gave testimony tending to establish appellant's alibi defense, that factor is of no aid to appellant in this Court under the circumstances, since the credibility and weight to be given the testimony is within the province of the trier of the facts. Reno v. State, supra.
For all of the foregoing reasons, no prejudicial error has been presented by appellant and the judgment of the trial court is, therefore, affirmed.
Lewis, C.J., Arterburn, Jackson and Mote, JJ. concur.
NOTE. — Reported in 235 N.E.2d 479.