Foster v. State

• Decision Date: 12 January 1944
• Docket Number: No. 27892.,27892.
• Citation: 52 N.E.2d 358,222 Ind. 133
• Parties: FOSTER v. STATE.
• Court: Indiana Supreme Court

222 Ind. 133

52 N.E.2d 358

FOSTER

v.STATE.

No. 27892.

Supreme Court of Indiana.

Jan. 12, 1944.

Farnum A. Foster was convicted of rape, and he appeals.

Affirmed.Appeal from Criminal Court, Lake County; William J. Murray, Judge.

Conroy & Glendening, of Hammond, and Milo C. Murray, of Gary, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, First Asst. Deputy Atty. Gen., Charles W. Gannon, Pros. Atty., of Crown Point, and Henry G. Doherty, Deputy Pros. Atty., of East Gary, for appellee.

O'MALLEY, Judge.

Under § 10-4201, Burns' 1942 Replacement, § 2421-1, Baldwin's Supp.1941, the appellant was charged and convicted of raping a nine year old girl.

It is not contended that the evidence is insufficient, but it is claimed that the court erred in sustaining an objection to each of three hypothetical questions which were propounded by appellant's attorney. The witness to whom the questions were propounded, although not a medical doctor and not an expert on mental diseases, qualified as an expert on sex hormones by giving a history of his collegiate education and research experience on plants and animals.

The assumed facts of the first question were: A man thirty-five years of age, who knew right from wrong and who was of sound mind, but who had a nervous condition that made him desire to be alone and who committed the act of rape on a nine year old girl (detailed in accordance with the evidence) and who did not afterward remember the act, or denied remembrance, and that the assumed man and the defendant were one and the same. The witness was asked to consider the above-assumed facts, and also to consider that he, the witness, was present in court and had heard the defendant testify and had seen and observed him, and upon all of this as a basis to give his opinion as to whether or not such man had a physiological imbalance of the sex hormones.

The second question requested the witness to state whether or not one suffering from such imbalance would know what he was doing at the time of the crime.

The third question asked whether or not one so suffering would afterward remember the occurrence.

The offers to prove were, as to the first question, that he would have such imbalance, as to the second, that he would not know what he was doing, and as to the third, that he would not remember the occurrence.

The contention is that this evidence would describe the defendant to the jury and tend to show that there was an ‘irresistible urge’ to commit the act and thus a partial lack of responsibility. It is further asserted that this physical condition...