Burton v. State

Dissenting Opinion

Draper, J.

I dissent, and to máke my reason- clear, it' will be necessary to state somewhat more of the evidence, as taken from the record, than is set out in the majority opinion.

*256 It is true the little girl was indefinite as to the places she had lived with her parents. The fact is that the appellant and his family lived a nomadic life for years, rarely living in one place more than a few days or weeks. She testified that these acts with which the appellant was charged, which included the act technically known as fellatio and the act technically known as cunnilingus, as well as other acts which I will not describe, were performed at various places and in various cities and sometimes in the appellant’s truck, 1 and had gone on for. a long period of time. Considering the restless roving of this family, it does not seem strange to me that the child was somewhat indefinite about the various places in which they had lived.

In March 1950 the child complained for the first time to her mother. She first told her mother about another little girl, 2 and then told about herself. The mother immediately called a cab and went with her three children to police headquarters, and there told the police about the complaint her daughter had made to her. They went from there to the grandmother’s and that night the little girl was taken to the Guardian’s Home. She remained at the Home three or four weeks. While there the policewoman took her to the Juvenile Court where her statement was taken.

At the police station the day after the appellant was indicted the little girl, her mother, her brother, a policeman and two policewomen were present and Sylvia told about the appellant’s conduct toward her in the appellant’s presence. The appellant denied the accusations *257 and called the little girl a liar. He also made accusations against his wife and suggested she take a lie detector test. She said she would if he would, but he refused to do so.

The written statement signed by appellant referred to as having been made when he was “hysterical” under questioning was made more than three months after the appellant was indicted. The appellant sent for Officer Bevan, and the officer went to General Hospital where appellant was then confined and took down the appellant’s statement. It was wholly voluntary and made on the appellant’s own initiative. It contained no denial of the charge pending against the appellant, unless inferentially, but consisted almost entirely of unprintable accusations against his wife. It was not introduced in evidence.

The little girl, who was past ten years of age at the time of trial, and in grade 5A in school, freely admitted she had talked with her mother and with the prosecutor and deputy prosecutor. At no time did anyone tell her what she would be asked, and no one told her what to say. Her mother told her to tell the truth. She did testify she hated her father, and said it was because he did those bad things to her and hit her mother. While some leading questions were asked, I think they were justified in the light of the child’s age and the nature of the testimony. Her testimony in the main was not given in answer to leading questions. Skillful and penetrating cross-examination failed to impair it.

The mother did testify that on a number of occasions she had observed appellant and the little girl together under circumstances that caused her concern. I will not detail them here, but merely state that they involved, among other things, his presence at or in her bed at unusual times and the placing of his hands on her body. *258 The mother tried to find out what was going on. Questions put to the appellant concerning his conduct produced threats and beatings. At one time he tore all her clothes off and made the children stand there and watch, and he got his gun and threatened her. On another he twisted her leg and knocked her “completely cold,” and would not let the little girl call the police. On one occasion she left for several days and took the child with her. She took no other action because she did not know positively whether anything was going on, and thought there could be nothing wrong.

The appellant was convicted of assault and battery several times in connection with these and other beatings. He was once convicted of child neglect. All but oné of appellant’s convictions for assault and battery grew out of complaints lodged by his wife, and she at one time had him put under peace bond. She did not meet her present husband until after she was divorced from the appellant.

I omit the revolting details' of how appellant accomplished his purpose on numerous occasions and of the threats he made and the precautions he took to escape detection. 3 The child’s testimony is in part corroborated by the testimony of her brother who is two years older and was in grade 7A at the time of trial. He displayed no animosity toward the appellant. The mother’s testimony concerning how the appellant kidnapped and raped her after she filed suit to divorce him does not appear to be unbelievable in the light of the other evidence. In any event that circumstance might affect the credibility of the mother, but it could hardly affect that of the child.

*259 Although the foregoing recital is wholly incomplete, I have set it out from the record because I believe that when it is considered along with the evidence set out in the majority opinion, it shows beyond peradventure that the case presented involved only questions of fact to be resolved by the trial court. From the very beginning this court has adhered to the doctrine that we will not weigh conflicting evidence, and that we will not judge the credibility of witnesses who appear and testify. If it were otherwise, our system simply would not hold together. To adopt a different plan now must inevitably result in a series of weird miscarriages of justice. The reasons have often been stated. In his effort to ascertain the truth the trial judge has a conspicuous advantage. The printed or typewritten record fails to reveal to this court what the trial judge so plainly sees. It is difficult enough to evaluate human testimony without trying to do so from a reading of the testimony. Such does not reveal the appearance of the witness, his composure or lack of it, his changing facial expressions, the ready response, the halting answer, the appealing glance at counsel, and the many other indicia of truth or falseness that mean so much to the experienced lawyer or judge.

It is not for us to decide where the truth lies. Testimony concerning the outrages that were perpetrated upon the child in this case naturally strains the credulity of normal men. We are loath to believe that human nature can be so altogether debased. Yet we know as informed men and as judges that such things do happen, and it is the duty of courts to protect those against whom such sins are committed, especially when they are children of tender years. I do not believe we have any right to label testimony in a case of this kind, which "has been credited by the trial judge, as being “bizarre” *260 or “incredible,” unless we are ready to say that truth is no longer stranger than fiction, or we are willing to set up our own notions of what the evidence shows as final and unimpeachable truth.

Under the law of this state a child ten years of age is a competent witness. Burns’ 1946 Repl., §2-1714. In this case it was also developed that the child had gone to church and Sunday-school in the past; knew the difference between the truth and a lie; and knew what it meant to swear in court to tell the truth. It is true there was no evidence that the child was not a “fantast.” Neither was there any evidence that the appellant was incapable of testifying falsely. 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.), Yol. 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. To say that in some cases she must do so, and in other cases she need not, seems to me to introduce an intolerable element of uncertainty into the administration of justice in this state, for no one can know in advance whether this *261 court will be of the opinion that such should have been done.

Under what circumstances, when, by whom and on whose motion psychiatrists should be appointed is left wholly to conjecture. Under what conditions they shall conduct their inquiries, to whom or how they shall make known their opinions, or with whom they shall file their reports, if any, is an open question. How such opinions or reports can be used in a prosecution against an accused or otherwise find their way into the record is a mystery to me. 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.

The affidavits of the other girls referred to in the majority opinion are not a part of the record in this case because they were not brought in by bill of exceptions. They are, therefore, not before us. This rule has been established by an unbroken line of cases, and was last announced by us in a unanimous opinion which was filed less than two months ago. See State ex rel. v. Graham (1953), 231 Ind. 682 , 110 N. E. 2d 855 . The statements are, moreover, indefinite, and obviously not drawn in the language of those who signed them. They were not relied upon by the appellant in this appeal.

The appellant was furnished with able and experienced counsel, and he was vigorously and ably defended. He elected to waive trial by jury and submit his case to a trial judge who has had many years of experience as such. Disputed questions of fact were presented and disputed questions of fact were resolved. On the testimony of the child, as corroborated by her older brother and by her mother, the trial court found the appellant *262 guilty. In my opinion the evidence amply sustains the finding and the judgment should be affirmed.

Bobbitt, J. — Concurs.

Note. — Reported in 111 N. E. 2d 892 .

. The child’s testimony with reference to the appellant’s conduct toward her on the trip to Cincinnati was that it occurred in the night time.

. This other girl’s mother is a sister of appellant. She was one of appellant’s witnesses. She refused to let her daughter make a statement and refused to cooperate with law enforcement officers in an investigation of the “affair” between the appellant and her daughter.

. In connection with the mother’s testimony concerning mirrors placed by the appellant, she testified that the door to the bedroom was open and a light on in the living room.