Beard v. State, No. 374S58

Docket NºNo. 374S58
Citation262 Ind. 643, 323 N.E.2d 216, 45 Ind.Dec. 587
Case DateFebruary 14, 1975
CourtSupreme Court of Indiana

Page 216

323 N.E.2d 216
262 Ind. 643
Dalls Dale BEARD, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 374S58.
Supreme Court of Indiana.
Feb. 14, 1975.

[262 Ind. 645]

Page 217

Rice & Van Stone by William E. Weikert, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendant (appellant) was convicted of rape by force 1 and kidnapping. 2 He was sentenced to life imprisonment. His appeal presents five general issues, as follows:

(I) Did the trial court err in striking his motion in arrest of judgment upon the rape count?

[262 Ind. 646] (II) Was the evidence upon the rape count sufficient upon the elements of resistance by the prosecutrix and force by the defendant?

(III) Was there an insufficiency of evidence requiring an acquital upon the kidnapping charge by reason of the State's failure to prove a 'fraudulent' carrying away, as alleged in the indictment?

(IV) Is the sentence of life imprisonment for kidnapping proscribed as cruel and unusual punishment?

(V) Should this Court exercise its power under Article 7, § 4 of our State Constitution and reduce the defendant's life sentence for kidnapping?

We answer issues I, III, IV and V in the negative and issue II in the affirmative.

Page 218

ISSUE I. Following the verdict of guilty, the defendant filed a motion in arrest of judgment upon the rape count. This motion was stricken by the court as being improper. The parties have argued the propriety of the motion in this Court in view of Burns' Ind.Stat.Ann. § 9--2201, IC 35--4.1--4--1, which purports to abolish motions in arrest of judgment. The defendant acknowledges the statute at face value but asserts that it should not apply in this case, inasmuch as it did not become effective until after his arraignment. However, we do not go to this issue upon the basis argued; because the motion was improper under our Criminal Rule 3(B) 3 which was effective at all stages of this case. The proposition presented by the motion in arrest of judgment could and should have been presented by a motion to quash the affidavit. The affidavit alleged only that the defendant had carnal knowledge of the prosecutrix against her will. 'Force' should also have been alleged, as it is an essential element of the offense and is distinct and apart from the requisite that the act of intercourse be against the [262 Ind. 647] will of the proxecutrix. The statute requires both. However, had the omission been raised by a motion to quash, it doubtlessly would have been supplied by amendment, as force was clearly in evidence. Criminal Rule 3(B) was designed to avert just such a technical and meritless claim as is here sought to be raised.

ISSUE II. The prosecutrix testified that the defendant threatened to kill her if she did not submit and that she feared for her safety. Thus, although he did her no physical harm and although she submitted under the threat, without offering physical resistance, the evidence was sufficient to prove force. The requisite force need not be physical but may be constructive or implied. Hendley v. State (1974), Ind.App., 311 N.E.2d 849; Rahke v. State (1907), 168 Ind. 615, 81 N.E. 584; Espenlaub v. State (1936), 210 Ind. 687, 2 N.E.2d 979. Likewise physical resistance is not required where prevented or averted by threats and fear. Parrett v. State (1928), 200 Ind. 7, 159 N.E. 755; Ransbottom v. State (1896), 144 Ind. 250, 43 N.E. 218; Felton v. State (1894), 139 Ind. 531, 39 N.E.2d 228; Huber v. State (1890), 126 Ind. 185, 25 N.E. 904.

It is true that certain of the prosecutrix's conduct prior to, during and following the rape would have been highly consistent with the hypothesis that there was no rape but merely...

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49 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...the evidence implying the innocence of appellant, but whether they could reasonably have accepted one of his guilt. Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d Regarding premeditation, appellant posits a total absence of evidence. The State counters that "premeditation may be inferred f......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...of rape may be on the testimony of the victim Page 785 alone. Harris v. State, (1978) Ind., 373 N.E.2d 149; Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216; Lynch v. State, (1974) 262 Ind. 360, 316 N.E.2d The Court of Appeals quotes extensively from Vuncannon v. State, (1970) 254 Ind. 2......
  • Vacendak v. State, No. 674S121
    • United States
    • Indiana Supreme Court of Indiana
    • January 22, 1976
    ...life imprisonment for the crime of kidnapping in the face of cruel and unusual-proportionality challenges. Beard v. State, (1975) Ind., 323 N.E.2d 216; Cox v. State, (1931) 203 Ind. 544, 177 N.E. 898, rehearing denied, (1932) 203 Ind. 544, 181 N.E. 469. The arguments presented here do not m......
  • Fointno v. State, No. 1283S460
    • United States
    • Indiana Supreme Court of Indiana
    • January 6, 1986
    ...and revise the sentence imposed." Similar authority is vested in the Court of Appeals under Art. VII, Sec. 6. In Beard v. State (1975), 262 Ind. 643, 649, 323 N.E.2d 216, 219, this Court stated that it would not exercise the power granted under Art. VII, Sec. 4 until a program of policies a......
  • Request a trial to view additional results
49 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...the evidence implying the innocence of appellant, but whether they could reasonably have accepted one of his guilt. Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d Regarding premeditation, appellant posits a total absence of evidence. The State counters that "premeditation may be inferred f......
  • Sizemore v. State, No. 1079S295
    • United States
    • Indiana Supreme Court of Indiana
    • October 25, 1979
    ...of rape may be on the testimony of the victim Page 785 alone. Harris v. State, (1978) Ind., 373 N.E.2d 149; Beard v. State, (1975) 262 Ind. 643, 323 N.E.2d 216; Lynch v. State, (1974) 262 Ind. 360, 316 N.E.2d The Court of Appeals quotes extensively from Vuncannon v. State, (1970) 254 Ind. 2......
  • Vacendak v. State, No. 674S121
    • United States
    • Indiana Supreme Court of Indiana
    • January 22, 1976
    ...life imprisonment for the crime of kidnapping in the face of cruel and unusual-proportionality challenges. Beard v. State, (1975) Ind., 323 N.E.2d 216; Cox v. State, (1931) 203 Ind. 544, 177 N.E. 898, rehearing denied, (1932) 203 Ind. 544, 181 N.E. 469. The arguments presented here do not m......
  • Fointno v. State, No. 1283S460
    • United States
    • Indiana Supreme Court of Indiana
    • January 6, 1986
    ...and revise the sentence imposed." Similar authority is vested in the Court of Appeals under Art. VII, Sec. 6. In Beard v. State (1975), 262 Ind. 643, 649, 323 N.E.2d 216, 219, this Court stated that it would not exercise the power granted under Art. VII, Sec. 4 until a program of policies a......
  • Request a trial to view additional results

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