Epperson v. State

• Decision Date: 22 February 1937
• Docket Number: 26607.
• Citation: 6 N.E.2d 538,211 Ind. 237
• Parties: EPPERSON v. STATE.
• Court: Indiana Supreme Court

6 N.E.2d 538

211 Ind. 237

EPPERSON v. STATE.

No. 26607.

Supreme Court of Indiana

February 22, 1937

Appeal from Vanderburgh Circuit Court; John W. Spencer, Jr. judge.

Wm. D. Hardy, of Evansville, for appellant.

W K. Denton, of Evansville, Philip Lutz, Jr., Atty. Gen., and Warren W. Martin and Caleb J. Lindsey, Asst. Attys. Gen., for the State.

ROLL Judge.

This was a prosecution by appellee against appellant and others begun by affidavit in one count filed in the Vanderburgh circuit court and charged appellant and his codefendants with the crime of kidnapping, under section 10-2901, Burns' Ind.St.Ann.1933, section 2418, Baldwin's Ind.St.1934. Appellant entered a plea of not guilty, and there was a trial by jury and a verdict of guilty returned. The appellant filed his motion for a new trial which the court overruled, which ruling is the only error assigned on appeal. The reasons assigned for a new trial are: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in overruling the motion of appellant to strike out the testimony of Harrison Hammers; (4), (5), and (6) relate to the court's instructions No. 2, 9, and 10.

The affidavit charged that Ramon Epperson, William Cox, and Frank Harrison on or about the 3rd day of September, 1934, did then and there feloniously, fraudulently, and forcibly arrest, imprison, carry off, decoy, and kidnap one Joe Mitchell from his place of residence in said county, with felonious intentions then and there and thereby carrying off the said Joe Mitchell from his place of residence and said acts were not then and there done pursuant to the laws of the State of Indiana or the United States, etc.

The evidence is uncontradicted and undisputed, as appellant did not testify in his own behalf nor did he introduce any evidence whatever.

The evidence on behalf of the State is in substance as follows: That Joe Mitchell testified that on the night of September 3, 1934, he was a driver for the Yellow Cab Company in the city of Evansville, Ind.; that about 1:45 o'clock in the morning on said date he drove a passenger to the L. & N. Railroad station, and when he arrived at the station he got out and carried the passenger's baggage into the depot, and when he came out he saw appellant and two other persons (afterwards indentified as Frank Harrison and William Cox) sitting in the back seat of the cab. They requested him to drive them to Fourth and Locust streets to get some liquor; that when they arrived at this point they asked him where they could find some liquor, to which he repeated that he would taken them to a place on Ninth street where they could get liquor; that when he got to Eighth street they said they wanted to go to Washington avenue. Mitchell drove them to Washington avenue, and on east past the lights, and as they crossed Evans avenue appellant said to Mitchell, 'This is a stickup. Keep your hands high on the wheel and step on it.' That he drove to New Green river road and turned right and after he turned off Washington avenue about 200 feet Frank Harrison took the wheel. Appellant held a gun on him all the time, and after Harrison took the wheel he was told to keep his head out of the window. The witness described the route over which Harrison drove to where they stopped near Slaughter avenue. When they stopped, appellant ordered him out of the car and held a gun on him until Harrison got out; then Harrison held a gun on him until appellant got out. They took him about 30 feet back of the cab into a corn field and took about $18 in money off his person, tied his hands behind him, tied his feet together, and then tied his hands and feet together with insulated copper wire, and left him bound in the condition just described. Appellant and Harrison got in the cab and drove off with the cab. After about ten minutes, he succeeded in freeing himself and afterwards his cab was found on Pennsylvania street near Mary street. William Cox got in the driver's seat when he got out and he drove the cab away when appellant and Harrison returned. Frank Harrison and William Cox testified for the State. Their evidence was in substance the same as that of Joe Mitchell.

Lloyd Rhodes testified that he was a driver for the Yellow Taxi Cab Company, and that on September 1, 1934, about midnight he got out of his cab at the corner of Lincoln and Governor streets and went over to a post to a phone, and when he returned, Frank Harrison and another person whom he described and who was in his opinion the appellant, were sitting in his car. He related the facts as to how he was forced at the point of a gun to drive out in the country and was robbed and his hands tied behind him, his feet tied together, and then his hands and feet tied together with insulated copper wire, and left in much the same way as was Joe Mitchell.

William Redman, a driver for the Checker Cab Company, testified that on the night of August 25, 1934, appellant got in his car, and he was forced to drive as directed to the country, that his money was taken from him and he was forced to lie down on the ground, and his hands and feet were tied in the same manner as related above with insulated copper wire.

Harrison Hammers testified that on the night of August 30, 1934, he was employed by the Southern Indiana Gas & Electric Company as a street car conductor and motorman. That on the said night he was on the inbound Bellemeade car and stopped at Vann avenue and Bellemeade and picked up two passengers. One was appellant and the other identified by his height and build as Frank Harrison. That he was forced out of the car at the point of a gun, his money taken from him, that he was then taken 40 or 50 yards away from the car and tied in the same...