Feller v. State, No. 975S253

Docket NºNo. 975S253
Citation264 Ind. 541, 348 N.E.2d 8
Case DateJune 01, 1976
CourtSupreme Court of Indiana

Page 8

348 N.E.2d 8
264 Ind. 541
Terry Lynn FELLER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 975S253.
Supreme Court of Indiana.
June 1, 1976.

[264 Ind. 542]

Page 11

Richard G. Striegel, New Albany, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of kidnapping and rape of a twelve year old girl, and he was sentenced to imprisonment for five years upon the rape charge and for life upon the kidnap charge. His appeal raises four issues:

(1) Was there sufficient evidence of intent to carry the victim away and of the defendant's sanity?

(2) Should the defendant's post-arrest statements have been suppressed?

(3) Did the trial court err in admitting items of tangible evidence, over the defendant's objection that they were gruesome and inflammatory while being only cumulative?

(4) Was the defendant entitled to a hearing under the criminal sexual deviancy statute?

ISSUE I

The undisputed evidence disclosed that the defendant forcibly abducted the prosecutrix, a twelve year old female, from a city street, carried her in his automobile to a secluded area and there penetrated her in an attempt to have sexual intercourse with her.

The defendant's first claim of insufficiency is that inasmuch as his primary intentions in abducting the prosecutrix was to rape her, the carrying her away was but a secondary or subordinate intention. We fail to understand how this enters into a sufficiency issue under the circumstances of this case. The intent requisite to his kidnapping charge was an intention to carry off the victim. His purpose therein was immaterial. Other jurisdictions have held that when the asportation was merely incidental to the commission of another crime, a kidnapping has not been committed. People v. Adams (1973), 389 Mich. 222, 205 N.W.2d 415; People v. Timmons (1971), 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648. We have declined to follow that [264 Ind. 543] viewpoint. Wilson v. State (1970), 253 Ind. 585, 255 N.E.2d 817; Vacendak v. State (1976), Ind., 340 N.E.2d 352.

Additionally, under this point, the defendant contends that a conviction for kidnapping, when that offense is merely incidental to a rape, violates the constitutional proscription against vindictive justice, citing Article 1, § 18 of our state constitution. We see no merit to this contention. That the defendant has committed two offenses in carrying out a single purpose does not render either offense less serious than it would otherwise have been.

Because the defendant could not or would not remember the details of the

Page 12

crimes, the court-appointed phychiatrists who examined him were unable to form an opinion as to his sanity at the time of the commission of the crimes. They agreed, however, that he was sane at the time of examinations. The defendant cites various factors consistent with a state of mental impairment at the time of the rape and kidnap: heavy consumption of alcohol during the months prior to the crimes and in the hours immediately before their commission; that the crimes were committed in such a manner as to facilitate detection; that two of the doctors testified that any mental problems which caused a person to drink would probably surface during a time that such person was actually drinking; and that he had made two unsuccessful attempts to commit suicide in the months prior to the rape and kidnap of the prosecutrix.

Even if the existence of these circumstances had been unrebutted, the jury would not have been found to find that the defendant was insane. Limp v. State (1950), 228 Ind. 361, 92 N.E.2d 549; Freese v. State (1903), 159 Ind. 597, 65 N.E. 915. That cause for insanity exists, i.e. mental degeneration brought about by prolonged heavy use of alcohol, does not mean that a particular defendant urging that cause of insanity is, in fact, insane. Sawyer v. State (1871), 35...

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28 practice notes
  • State v. Anthony, Nos. 324
    • United States
    • Supreme Court of Tennessee
    • 23 September 1991
    ...v. State, 163 Ga.App. 502, 295 S.E.2d 166 (1982) (any unlawful asportation sufficient to support kidnapping conviction); Feller v. State, 264 Ind. 541, 348 N.E.2d 8 (1976) (rejecting People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973)); State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988)......
  • People v. Wesley, Docket Nos. 66597
    • United States
    • Supreme Court of Michigan
    • 1 February 1985
    ...however slight, will support kidnapping conviction, but also criticizing the rule and calling for legislative amendment); Feller v. State, 264 Ind. 541, 348 N.E.2d 8 (1976); State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982); Rodriguez v. State, 646 S.W.2d 524 (Tex.App.1982); State v. Si......
  • Orr v. State, No. 2-283A56
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 December 1984
    ...admissible where it appears he understood the questions and was able to respond to them. Parsons, supra; see also Feller v. State, (1976) 264 Ind. 541, 348 N.E.2d Finally, we fail to see how Orr was harmed by his acknowledgement that he was drinking. Other testimony that stated: (1) he smel......
  • Bond v. State, No. 577S309
    • United States
    • Indiana Supreme Court of Indiana
    • 25 April 1980
    ...Where the intent requisite to a kidnapping charge is present, the purpose for the kidnapping is immaterial. Feller v. State, (1976) 264 Ind. 541, 348 N.E.2d 8; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352; Wilson v. State, (1970) 253 Ind. 585, 255 N.E.2d 817. "We do not approve an......
  • Request a trial to view additional results
28 cases
  • State v. Anthony, Nos. 324
    • United States
    • Supreme Court of Tennessee
    • 23 September 1991
    ...v. State, 163 Ga.App. 502, 295 S.E.2d 166 (1982) (any unlawful asportation sufficient to support kidnapping conviction); Feller v. State, 264 Ind. 541, 348 N.E.2d 8 (1976) (rejecting People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973)); State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988)......
  • People v. Wesley, Docket Nos. 66597
    • United States
    • Supreme Court of Michigan
    • 1 February 1985
    ...however slight, will support kidnapping conviction, but also criticizing the rule and calling for legislative amendment); Feller v. State, 264 Ind. 541, 348 N.E.2d 8 (1976); State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982); Rodriguez v. State, 646 S.W.2d 524 (Tex.App.1982); State v. Si......
  • Orr v. State, No. 2-283A56
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 December 1984
    ...admissible where it appears he understood the questions and was able to respond to them. Parsons, supra; see also Feller v. State, (1976) 264 Ind. 541, 348 N.E.2d Finally, we fail to see how Orr was harmed by his acknowledgement that he was drinking. Other testimony that stated: (1) he smel......
  • Bond v. State, No. 577S309
    • United States
    • Indiana Supreme Court of Indiana
    • 25 April 1980
    ...Where the intent requisite to a kidnapping charge is present, the purpose for the kidnapping is immaterial. Feller v. State, (1976) 264 Ind. 541, 348 N.E.2d 8; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352; Wilson v. State, (1970) 253 Ind. 585, 255 N.E.2d 817. "We do not approve an......
  • Request a trial to view additional results

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