Critchlow v. State

• Court: Indiana Supreme Court
• Writing for the Court: GIVAN; HUNTER, J., concurs with opinion in which DE BRULER; HUNTER; DE BRULER
• Citation: Critchlow v. State, 264 Ind. 458, 346 N.E.2d 591, 52 Ind.Dec. 373 (Ind. 1976)
• Decision Date: 10 May 1976
• Docket Number: No. 575S123,575S123
• Parties: Gerald Edward CRITCHLOW, Appellant, v. STATE of Indiana, Appellee.

Page 591

346 N.E.2d 591

264 Ind. 458

Gerald Edward CRITCHLOW, Appellant, v. STATE of Indiana, Appellee.

No. 575S123.

Supreme Court of Indiana.

May 10, 1976.

Rehearing Denied Aug. 19, 1976.

Myron J. Hack, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Lawrence B. O'Connell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged in a three-count affidavit with the crimes of kidnaping, rape and sodomy. Trial by jury resulted in a verdict of guilty on all three counts. The trial court sentenced the appellant to the Indiana State Prison for a period of not less than life on the charge of kidnaping; to the Indiana Department of Correction for a term of not less than two nor more than twenty-one years on the count of rape; and to the Indiana Department of Correction for a term of not less than two nor more than fourteen years on the count of sodomy.

The record discloses the following facts: On the evening of November 22, 1972, Fritz Moeller and Nancy Marie Schoner, after having a few drinks at local bars in South Bend, Indiana, drove to Douglas Road located behind the airport near South Bend where they parked. After having been so parked for approximately one-half hour, a person later identified as the appellant approached the couple's car and tapped on the car's window. They were informed by the appellant that they were on private property, whereupon the appellant drew a gun and ordered Moeller from the automobile. Appellant then locked Moeller in the trunk of the automobile.

While this was going on, Nancy Marie Schoner got out of the automobile and started running on Douglas Road. The appellant overtook her, grabbed her by the arm and forced her to enter his automobile. The automobile with the appellant and Miss Schoner was then driven to a place described as Westminister Church. Miss Schoner testified that while the appellant was so driving he forced her to commit fellatio upon him.

Upon arriving at the church parking lot, the appellant forced Miss Schoner to have sexual intercourse with him. Miss Schoner was then returned to the automobile where Moeller had been left locked in the trunk, where she was released by the appellant. Moeller was subsequently released from the trunk unharmed.

Because Moeller was a married man he persuaded Miss Schoner not to report the incident to the police department. In April, 1973, the police department received information concerning the incident and questioned Miss Schoner, at which time she made a full disclosure. The appellant was arrested on April 26, 1973, as a result of that investigation.

Appellant challenges the constitutionality of the kidnaping statute, IC 1971, 35-1-55-1 (Burns 1975), on the ground the penalty provided is excessive. Appellant calls our attention to the fact that the foreman of the jury wrote on the verdict finding the appellant guilty of kidnaping, 'Although the jury finds the defendant technically guilty of the crime of kidnaping under the law, life imprisonment seems too harsh of a sentence in this particular case.' The jury also affixed notes to the verdicts on rape and sodomy reading, 'The jury suggests that the defendant have the opportunity for psychiatric care.' There is an affidavit made by juror Gebo stating that the jury returned its verdict with the understanding that the court was bound to consider these observations. Appellant then proceeds to argue the facts in this case, taking the position that the transportation of Miss Schoner was not in the true sense a kidnaping but was for the sole purpose of perpetrating the rape upon her; that once this was accomplished she was returned to the place where she was originally removed; therefore, the life sentence was entirely too harsh.

It is not for this Court to determine legislative policy as to the severity of punishment to be prescribed for any particular crime. In White v. State (1963), 244 Ind. 199, 191 N.E.2d 486, 1 Ind.Dec. 636, this Court stated at page 204, 91 N.E.2d at page 488:

'It may be that the penalty provided by the kidnapping statute is too great in view of the factual situation as herein delineated, and that the legislature should give some thought to an amendment of the statute, but that is a function of the legislature, not of this court.'

In Wilson v. State (1970), 253 Ind. 585, 592, 255 N.E.2d 817, 821, 21 Ind.Dec. 1, this Court addressed itself to essentially the same argument advanced by appellant here, and in so doing, stated:

'Appellant suggests that this court adopt a principle whereby any restraint and transportation of the victim would be considered only as an integral part of the charge of rape and not as a separate charge of kidnapping. In other words, that because the rape in this case also included a kidnapping or transportation under restraint he should not be prosecuted separately for that crime. Carrying the argument further it seems the victim was not carried very far to constitute a real kidnapping and it was merely incidental to the rape. Of course, the argument fails because a transportation or kidnapping is not necessarily involved in a rape. It might likewise be urged in any crime of violence that the victim was touched only 'lightly' and only incidental to the main crime, and therefore should not be subject to a separate or included charge of assault and battery with intent. In such cases as this the attacker is guilty of a compound crime as happens in instances when a victim is also killed in the commission of another crime, or also kidnaps, while committing a robbery. We do not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts.'

We therefore hold that the penalty provided by the legislature for kidnaping is a proper exercise of the legislative prerogative and is not subject to alteration by the judiciary.

Appellant further argues that Article 7, § 4, of the Indiana Constitution should be invoked by this Court in this particular case to review and revise the sentence imposed upon the appellant.

Article 7, § 4 of the Indiana Constitution reads in pertinent part as follows:

'The Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed.'

As we observed in Beard v. State (1975), Ind., 323 N.E.2d 216, 45 Ind.Dec. 587, this constitutional provision appears to go beyond our inherent power to review and revise sentences. We further observed in that case that we have thus far refrained from exercising this power and believe that it should only be done under a program of policies and procedures not yet established. However, the above-quoted constitutional provision could hardly be interpreted to mean that the judiciary has unlimited power to, in a sense, legislate by changing any particular criminal sanction at will. The power to 'revise the sentence imposed' must necessarily be read to mean that the sentence may be revised within the framework of existing law. We see nothing in the record before us which would justify a change of the statutory life sentence under which the appellant is now incarcerated.

The fact that the jurors appended their personal beliefs or philosophies to the jury verdict or the fact that juror Gebo made an affidavit as to the understanding of the jurors at the time the verdicts were rendered does not change the content of the verdicts. The facts of the case were presented to the jurors. From those facts they determined that the appellant had committed the act charged. It is not within the province of the jury to change statutory penalties. See Denson v. State (1975), Ind., 330 N.E.2d 734, 47 Ind.Dec. 625.

Although the appellant has submitted the affidavit of juror Gebo, he claims that such affidavit is not for the purpose of impeaching the jury verdict, but to explain what the verdict, in fact, means. However, we can only gather from appellant's argument that he relies on the juror's affidavit to demonstrate that the appellant, although sentenced to life imprisonment, should not have been so sentenced. To this extent, in spite of appellant's protestations to the contrary, it appears the only purpose the affidavit could serve would be, in fact, to impeach the verdict. This Court has stated several times that jurors will not be permitted to impeach the verdict. Stinson v. State (1974), Ind., 313 N.E.2d 699, 42 Ind.Dec. 687; Wilson v. State, supra. We therefore, hold the statements of the jurors appended to the verdict, and the affidavit of juror Gebo, are not germane to the issues here presented.

Appellant next challenges the rape statute, IC 1971, 35-13-4-3 (Burns 1975), on the ground that it is void for vagueness. The pertinent part of the statute reads as follows:

'Whoever has carnal knowledge of a woman forcibly against her will, or of a female child under the age of sixteen (16) years; or whoever being over eighteen (18) years of age, has carnal knowledge of a woman, other than his wife, who is insane, idiotic or feeble-minded, he knowing of such condition; (,) is guilty of rape, and on conviction shall be imprisoned for a determinate period of not less than two (2) years nor more than twenty-one (21) years.'

Appellant claims this statute amounts to cruel and unusual punishment, in contravention of the Eighth Amendment of the Constitution of the United States and Article 1, § 16 of the Constitution of the State of Indiana; that it amounts to a penalty not proportioned to the nature of the offense in contravention of Article 1, § 16 of the Constitution of the State of Indiana; imposes a penalty founded on the principles of vindictive justice and not of reformation, in contravention of Article 1, § 18 of the Constitution of the State of Indiana; and denied the appellant a a full and impartial trial by...