Opinion
No. 28,163.
Filed May 21, 1946.
1. CRIMINAL LAW — Defenses — Alibi — Sufficiency of Proof — Question for Jury. — Where, in a prosecution for assault and battery with intent to commit rape, the injured woman positively identified defendant as the person who attacked her, and defendant and two of his witnesses testified to an alibi, the question of whom to believe was one for the jury to determine. p. 292.
2. CRIMINAL LAW — New Trial — Right of Trial Court to Grant — Reasonable Doubt of Guilt. — A trial judge has full authority to set aside a verdict and grant a new trial if he feels that the evidence was such as to leave a reasonable doubt of defendant's guilt. p. 292.
3. CRIMINAL LAW — New Trial — Motion Overruled — Verdict Approved by Court. — A trial judge, by overruling a motion for new trial, adds weight of approval to the jury's verdict. p. 292.
4. CRIMINAL LAW — Evidence — Sufficiency — Substantial Evidence to Support Each Material Element of Offense Charged. — The Supreme Court will not pass upon the credibility of witnesses or weigh the evidence on appeal, and in such matters it will not disturb the finding of the jury and judgment of the trial court if there is substantial evidence to support each essential element of the offense charged. p. 293.
5. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Right of Supreme Court to Examine Record in Determining. — The Supreme Court, in the interests of justice, may, but is not required to, examine the record to determine whether there is sufficient evidence to support the judgment of conviction and determine whether or not justice has been administered as the law contemplates. p. 293.
6. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Conviction of Assault and Battery With Intent to Rape Warranted. — Where the record showed no lack of evidence to sustain a judgment of conviction of assault and battery with intent to commit rape, the judgment could not be reversed for insufficiency of the evidence. p. 293.
From the Blackford Circuit Court; W.H. Eichorn, Special Judge.
Joshua Thompson, Jr., was convicted of assault and battery with intent to commit rape, and he appealed.
Affirmed.
Leonidas A. Guthrie, of Muncie, for appellant.
James A. Emmert, Attorney General, and Frank E. Coughlin, First Assistant Attorney General, for the State.
Appellant was charged by affidavit, in the Delaware Circuit Court, with assault and battery with intent to commit a rape. On application of appellant, the venue was changed to the Blackford Circuit Court, where on application of appellant, a special judge was regularly selected and qualified to try the case.
The cause was tried by a jury resulting in a verdict of guilty as charged in the affidavit. Appellant filed a motion for new trial for the statutory reasons, which was overruled by the court, and the defendant was by proper judgment duly sentenced to the Indiana State Reformatory for not less than one year nor more than 10 years and from this judgment, this appeal is taken.
Error assigned is "the court erred in overruling appellant's motion for a new trial."
Appellant's sole defense was an alibi, and appellant, his father-in-law and mother-in-law testified in substance that he was at his father-in-law's home some two miles away from 1-3. the scene of the crime at the time the offense was committed. The injured woman quite positively identified appellant as the person who brutally attacked her at her home. It then became the duty of the jury under proper instructions from the court to determine whom it would believe and whom it would not believe. By its general verdict the jury determined that it believed the evidence of the injured person, and disbelieved the evidence of the appellant and his two witnesses. This the jury had a right to do. Appellant's attorney in this appeal then filed a motion for new trial for appellant in which he questioned the sufficiency of the evidence to sustain a conviction. This motion was heard by the trial judge, who had full authority to set the verdict aside and grant appellant a new trial, if he felt the evidence was such as to leave a reasonable doubt of appellant's guilt. The able and experienced trial judge no doubt listened with care to the presentation of the motion for new trial. By overruling the motion he added the weight of his approval to the jury's verdict.
This court will not pass upon the credibility of the witnesses, or weigh the evidence on appeal. In such matters it will not disturb the finding of the jury and judgment of the trial 4. court, if there is substantial evidence to support each essential element of the offense charged. Walker v. State (1934), 206 Ind. 232, 236, 189 N.E. 127; Whitney v. State (1934), 206 Ind. 562, 570, 188 N.E. 779; Smith v. State (1937), 212 Ind. 605, 609, 610, 10 N.E.2d 899; Willinnar v. State (1935), 209 Ind. 264, 268, 198 N.E. 779.
Admitting that this is the law, the writer of appellant's brief says he feels that,
". . . in the interest of justice, this court should be asked to review the record in its entirety and determine whether or not, in the opinion of this court, justice has been administered as the law contemplates."
While we are not required to do so, we have examined the record. Appellant has pointed out no lack of evidence to sustain the judgment and we have found none. We feel that the 5, 6. finding and judgment below is fully sustained by the evidence.
The judgment is therefore affirmed.
NOTE. — Reported in 66 N.E.2d 597.