Brown v. State

• Citation: 111 N.E.2d 808,232 Ind. 227
• Decision Date: 23 April 1953
• Docket Number: No. 28895,28895
• Parties: BROWN v. STATE.
• Court: Supreme Court of Indiana

Page 808

111 N.E.2d 808

232 Ind. 227

BROWN v. STATE.

No. 28895.

Supreme Court of Indiana.

April 23, 1953.

Howard R. Hooper, Indianapolis, for appellant.

J. Emmett McMamamon, Atty. Gen., William T. McClain and John Ready O'Connor, Deputy Attys. Gen., and Edwin K. Steers, Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant, with two other persons, was charged by affidavit with the crime of kidnaping under § 1, of ch. 154, p. 477, of the Acts of 1929, being § 10-2901, Burns' 1942 Replacement, tried separately by jury, found guilty and sentenced to the Indiana State Prison for life.

Three questions are presented by the appeal and all will be considered because the two which are not determinative of the result reached herein are likely to arise on a retrial of the case.

1. Is the evidence sufficient to sustain a conviction for kidnaping?

2. Did the trial court err in admitting in evidence a purported signed statement or confession by appellant, made and signed in the presence of police officers?

3. Was it error to permit that part of such purported statement or confession containing statements pertaining to other crimes committed by appellant to be read to the jury?

We shall consider these questions in the order named.

First: The relevant part of Count 1 of the affidavit upon which appellant was convicted is as follows:

'* * * Howard Hyslope who, being duly sworn, upon his oath says that Joe E. Brown, Gilbert Hall and Harold Williams on or about the 19th day of June, A.D. 1951, at and in the County of Marion in the State of Indiana, did then and there feloniously, fraudulently and forcibly carry away, decoy and kidnap the following persons, namely: Donald Borgman, Louise Borgman and Michael Borgman from the residence of the said Donald Borgman, Louise Borgman and Michael Borgman, located at the address commonly known as 611 South Taft Street, in the City of Indianapolis, in the said County of Marion, in the said State of Indiana, with the felonious intention then and there and thereby of carrying the said Donald Borgman, Louise Borgman, and Michael Borgman away from their said place of residence, and said acts were not then and there done in pursuance of the laws of the State of Indiana or of the United States,'.

Section 10-2901; Burns' 1942 Replacement, supra, provides as follows:

'Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person, with the intention of having such person carried away from any place within this state, unless it be in pursuance of the laws of this state or of the United States, is guilty of kidnaping, and, on conviction, shall be imprisoned in the state prison during life.'

There is conflict in the evidence and when this is true this court will not weigh the evidence.

There is evidence in the record which discloses that appellant, at the time of his arrest, was escaping from the Indiana Reformatory; and that he and the other two men charged with him in the affidavit were returning from Terre Haute, Indiana, in the evening of June 19, 1951 when state police intercepted them in Plainfield, Indiana, and chased them toward Indianapolis. They out-distanced the police car and ran out of gasoline on the west side of Indianapolis where they stopped in front of Borgman's residence at 611 South Taft Street. Borgman, with his wife and three year old son, was coming through the gate in front of his home to get into his car, which was parked in front of his house, to go to a show when the car in which appellant and Hall and Williams (the other persons charged with appellant) were riding, pulled up beside them. Appellant and his companions jumped out of the car in which they had been riding, and ran up to Borgman asking him whether he had any gasoline. Borgman 'stalled for a second' then either Hall or Williams put his fist in Borgman's ribs and said: 'Get in the automobile. We are going for a ride--get in the automobile or I will cut you to pieces.' They (Borgmans) got in the car and appellant took the seat under the steering wheel and demanded that Borgman give him the key. Hall and Williams sat in the rear seat, with appellant and the Borgmans in the front seat. Appellant started and drove the car at a high rate of speed into the city, finally stopping in the vicinity of 16th and Northwestern Avenue in Indianapolis where he and his companions abandoned the car and the Borgmans. During the ride Borgman 'begged' appellant and his companions to let them out of the car and not harm them.

To sustain the conviction herein, it was necessary for the state to establish by competent evidence that appellant forcibly carried away the persons named in the affidavit from a place within the state, with the intent so to do, and not in pursuance of the laws of the state of Indiana or of the United States.

There is sufficient evidence as recited above from which the jury might have concluded that the persons as named in the affidavit were forced to get into Borgman's automobile in which they were carried, against their will, away from a place where they had a right to be.

There is also sufficient evidence of probative value from which the jury might have concluded that appellant, with intent so to do, forced the persons named in the indictment into an automobile and drove them against their will away from their place of residence, not in pursuance of the laws of this state or of the United States. This is sufficient to constitute the crime of kidnaping as defined in § 10-2901, Burns' 1942 Replacement, supra. Epperson v. State, 1937, 211 Ind. 237, 6 N.E.2d 538; Thompson v. State, 1939, 215 Ind. 129, 19 N.E.2d 165; Sweet v. State, 1941, 218 Ind. 182, 31 N.E.2d 993; State v. Augheman, 1929, 47 Idaho 328, 274 P. 805, 62 A.L.R. 195; State v. Higgs, 1930, 325 Mo. 704, 29 S.W.2d 74; State v. Andre, 1938, 195 Wash. 221, 80 P.2d 553; Norris v. State, 1939, 68 Okl.Cr. 172, 96 P.2d 540; Wheatley v. United States, 4 Cir. 1946, 159 F.2d 599.

See also Annotation, 17 A.L.R.2d 1003.

Appellant testified, and here asserts, that because he did not intend to kidnap the Borgmans, but was thinking only of taking the automobile as a means of escaping arrest and return to the reformatory, his conviction for kidnaping cannot be sustained.

The intent to carry away may be inferred from appellant's acts, and the evidence here is sufficient to sustain such an inference. Newport v. State, 1895, 140 Ind. 299, 39 N.E. 926; Fletcher v. State, 1874, 49 Ind. 124, 126, 19 Am.Rep. 673; Ewbank's Criminal Law, 2d ed., § 902, p. 689.

See also Walker v. State, 1894, 136 Ind. 663, 36 N.E. 356; Larkin v. State, 1904, 163 Ind. 375, 71 N.E. 959; King v. State, 1918, 187 Ind. 220, 118 N.E. 809.

Second: Appellant asserts that it was error to admit a purported statement or confession made by him and introduced in evidence as State's Exhibit 1 because it was not voluntarily made but was 'exacted by promises and coercion, direct or implied.'

At the hearing on appellant's motion to suppress said statement or confession, he testified that Detective Davenport told him that if he would 'cop out of it' he would fix it up so that appellant would get ten years flat, and would drop the rest of the charge against him; that at that time he thought the only charge against him was escaping from the Indiana State Reformatory, but Davenport told him that he was being held for kidnaping; that the next day he was again taken from the Marion County jail to police headquarters in Indianapolis where Detective Rogers told him that he might as well 'cop out'; that they knew he was held on a kidnaping charge but if he would sign a confession the charge of escaping from the reformatory would be dropped and he would get a ten year sentence on the kidnaping charge; that he was afraid of going back to...