House v. State

• Decision Date: 14 November 1917
• Docket Number: 23,217
• Parties: House et al. v. State of Indiana
• Court: Indiana Supreme Court

117 N.E. 647

186 Ind. 593

House et al. v. State of Indiana

No. 23,217

Supreme Court of Indiana

November 14, 1917

From Jackson Circuit Court; Oren O. Swails, Judge.

Prosecution by the State of Indiana against Francis R. House and Harry B Miller. From a judgment of conviction, the defendants appeal.

Reversed.

Holmes & McCallister, for appellants.

Ele Stansbury, Attorney-General, and Elmer E. Hastings, for the State.

OPINION

Lairy, J.--

Appellants, House and Miller, together with one Oscar F McLain, were charged by affidavit with the offense of kidnapping. There was a trial by jury resulting in a verdict finding appellants guilty of assault and battery. Judgment was rendered upon the verdict.

The errors relied upon here are the overruling of appellants' motions to be discharged and for a new trial. Under these motions it is contended by appellants that a person cannot be convicted of assault and battery upon an affidavit or indictment charging him with the crime of kidnapping.

The affidavit here charges that appellants in the county of Jackson, State of Indiana, on May 12, 1916, did then and there unlawfully, feloniously, forcibly and fraudulently carry off C. S. Mercer, forcibly and against his will, from his residence, said act not being in pursuance of any law of this State nor of the United States.

It is admitted that the affidavit is sufficient under § 2247 Burns 1914, Acts 1905 p. 584, 661, which provides that: "Whoever kidnaps or forcibly or fraudulently carries off or decoys from any place within the 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 kidnapping * * *." It is admitted by all that § 2147 Burns 1914, Acts 1905 p. 584, 644, which relates to convictions of a lesser degree upon a charge of an offense of a higher degree, where the offense consists of different degrees, does not control the question here presented, and that § 2148 Burns 1914, supra, is controlling. That section provides that: "In all other cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that which he is charged in the indictment or affidavit."

Appellants were found guilty of assault and battery, which by § 2242 Burns 1914, Acts 1905 p. 584, 661, is defined as follows: "Whoever, in a rude, insolent or angry manner, unlawfully touches another, is guilty of assault and battery * * *." The Attorney-General in his brief for appellee admits that the controlling question here is whether the offense of assault and battery is included in a charge of kidnapping.

In the case of Polson v. State (1894), 137 Ind 519, 35 N.E. 907, the court in deciding the question of whether, assault and battery with intent to commit the crime of rape was included in the crime of rape said: "It is true that a misdemeanor may be merged in a felony, but as a general rule one felony is not merged into another; especially is this true where the felonies are of the same grade. The crime of assault and battery with intent to commit a rape, and the crime of rape, are both felonies belonging to the same class. It is impossible to conceive of a rape without an assault and battery for that purpose. The crime of rape necessarily includes an assault and...