Appellant was charged by affidavit with rape, under § 10-4201, Burns' 1942 Replacement. He waived a trial by jury, and the cause was submitted to the court on a plea of not guilty. Finding and judgment were entered against appellant and sentence followed.
The only error claimed by appellant is the overruling of his motion for a new trial. *Page 317
Appellant contends that the finding of the court is contrary to law and is not sustained by sufficient evidence.
The testimony of Lois Ann Warner, being first questioned by the court for competency, showed that she was twelve years of age and was in Grade 4-B of school, that she understood the penalty for telling a falsehood or a lie, that it was an offense under her religion and the law to tell an untruth, and that in taking the oath to tell the truth she understood she was to tell nothing but the truth. Appellant desired no further examination, and had no objection to the competency of the witness to testify.
Her testimony on examination further showed that she resided in Michigan City with Paul Owens and his wife; that she was twelve years of age; that she first met appellant in April, 1948, and that they had a conversation; that she met him later in the summer at the park, and, between first seeing him and meeting him in the park, she had seen appellant about five other times; that a couple of times he asked her to go down to the park to meet him; that on one occasion when she met him in the park she had been swimming, was alone, and had agreed to meet appellant by the bandstand; that the meeting took place about 6:30 o'clock in the evening, before dark, and there were not many people around; that appellant took her near the bath house, down by the lake, and had intercourse with her; that this happened on September 23, 1948, and appellant then gave her some money, and when he gave her the money he told her not to tell anybody about what happened; that she then went home alone, and when she arrived home it was dark; that at a later time she met appellant by the pond in the park, and, in her own words, "He tried something"; that this happened in *Page 318 the daytime, while they were sitting on one of the benches, and there were trees and shrubs around; that he tried to do the same thing that happened on the beach, but had to stop because some people were coming; that he then gave her a quarter and a half dollar; that she never had anything to do with any other man or little boys.
The testimony of Paul Owens showed that he and his wife had the custody of Lois Ann Warner, and on September 24, 1948, he signed an affidavit against appellant charging him with the rape of Lois Ann Warner; that on September 23rd she left home about 6:00 p.m., and was supposed to be back at 7:00 p.m.; that at that time it was getting dusk; that about 7:00 p.m. he and a police officer started looking for Lois Ann Warner, and found her about 7:30 p.m., and it was dark; that she had several girl friends whom she visited in the neighborhood, and that appellant goes to the same house; that she was not allowed to go to the park in the evening.
The evidence of Frank Cowgill, a police officer, shows that when he and Paul Owens stopped Lois Ann Warner on the street, they then looked for appellant, found him, and, in his presence Lois Ann Warner said he was the man, and she identified him; that he refused to answer any questions; that the police officer took some money from Lois Ann Warner which she had on her person.
There was further testimony that on several occasions appellant was seen with Lois Ann Warner, and on one of these occasions was headed toward the park; that the police were notified of this; that these meetings would take place about dusk; that prior to the trial a doctor examined Lois Ann Warner and found that the entire hymen was broken, and could have been caused by attempted intercourse or intercourse. *Page 319
From the above testimony there is substantial evidence of probative value sufficient to sustain the court's finding on each material element of the crime charged. Inman v. State 1. (1945), 223 Ind. 500, 62 N.E.2d 627; White v. State (1941), 219 Ind. 290, 37 N.E.2d 937; Mack v. State (1936), 210 Ind. 336, 1 N.E.2d 595.
Appellant further contends that error was committed in the overruling of the motion for a new trial on the ground of newly discovered evidence. The affidavits setting out the newly 2. discovered evidence on which appellant based his contention for a new trial are not in the bill of exceptions, and therefore raise no question for this court. Garner v. State (1949), 227 Ind. 503, 86 N.E.2d 675; Hoy v. State (1947),225 Ind. 428, 75 N.E.2d 915; Butler et al. v. State (1945),223 Ind. 260, 60 N.E.2d 137; Bowling v. State (1942),220 Ind. 497, 44 N.E.2d 171; Soucie v. State (1941),218 Ind. 215, 31 N.E.2d 1018; Kleespies v. State (1886),106 Ind. 383, 7 N.E. 186.
See Bolton v. State (1945), 223 Ind. 308, 311,60 N.E.2d 742, for discussion of recantation of testimony.
There being no reversible error, the judgment is affirmed.
Emmert, C.J., and Gilkison, J., dissent.