Markiton v. State, 29386

CourtSupreme Court of Indiana
Citation236 Ind. 232,139 N.E.2d 440
Docket NumberNo. 29386,29386
PartiesJohn MARKITON, Appellant, v. STATE of Indiana, Appellee.
Decision Date23 January 1957

Rothberg, Gallmeyer, Doermer & Strutz, Thomas A. Gallmeyer, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.


This is an appeal in a criminal action in which the defendant-appellant was charged by affidavit in two Counts: Count 1, incest involving a daughter, Glenda Markiton; Count 2, assault and battery--sex, involving a daughter, Barbara Markiton. Upon a trial before the court, the appellant was found not guilty of Count 1 (incest involving Glenda Markiton) and guilty as to Count 2 (assault and battery--sex, involving Barbara Markiton).

Attention is called to the fact that Counts 1 and 2 deal with separate offenses against separate daughters. No objection appears to have been made to the joinder of these two Counts. We are concerned here solely with Count 2 (assault and battery--sex, involving the daughter, Barbara), since the appellant was acquitted of the charge of incest under Count 1 against the daughter, Glenda.

The appellant asserts error on the ground, among other specifications, that there was no evidence of any intent on the part of the defendant-appellant to commit assault and bettery--sex, and that the evidence clearly shows without contradiction that the touching was done in an innocent and playful fashion. Count 2 was drawn under Acts 1951, ch. 277, § 1, p. 825, being § 10-403, Burns' 1956 Replacement, which reads as follows:

'Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, and on conviction, shall be fined not more than one thousand dollars [$1000], to which may be added imprisonment in the county jail not exceeding six months; Provided, That whenever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton or unfasten any clothing of any child of the opposite sex or fondles or caresses the body or any part thereof of such child who is of the age of 16 years or under, with the intent to gratify the sexual desires or appetities of the offending person or, under circumstances which frighten, excite, or tend to frighten or excite such child, the punishment shall be imprisonment in the Indiana state prison for a period of time of not less than one year nor more than five years.'

The evidence shows the case grew out of events which arose when the eldest daughter, Glenda, age 15, failed to come home one night. When she was finally apprehended, she admitted certain improper relationship with a boy during her absence, and when questioned, also implicated her father. Out of this grew the charges under Counts 1 and 2 against the appellant.

We are concerned here only with the evidence pertaining to appellant's relationship with his daughter, Barbara, and whether or not it sustains a conviction.

The evidence in support of the judgment of assault and battery--sex pertaining to Barbara, is very meager. It shows that she, age 12, and her sister, age 15, slept in the same bed upstairs. The father, the appellant here, would on occasions go upstairs 'to tuck in us girls' at night. The testimony from these two daughters is that it was done in a playful way. 'We were all joking and laughing and teasing each other * * * he never got in bed there with me and Glenda. He just sat on the side or laid on the side of the bed.'

The atrongest evidence in favor of the state is that both daughters admitted that during this playfulness the father touched and came in contact with Barbara's breasts. There is no evidence showing that this was done with the intent specified in the statute, namely, to gratify the sexual desires of the appellant or to frighten the child. The jury or court may not draw inferences of evil intent where there are no facts to support such conclusions. In analyzing the evidence on this point we must confine it as to that which pertains to Barbara alone, since no inference of evil intent may be...

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24 cases
  • Carter v. State, 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...Criminal Law § 27, at 191-93 (1972). See also Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905 (1939). Cf. Markiton v. State, (1957) 236 Ind. 232, 139 N.E.2d 440 ("A crime has two components an evil intent coupled with an overt act.") It is, however, somewhat misleading to think in term......
  • Shipman v. State, 29956
    • United States
    • Indiana Supreme Court of Indiana
    • June 26, 1962 the time of the touching to gratify the sexual desires or to frighten the child as provided by statute. Markiton v. State (1957), 236 Ind. 232, 236, 139 N.E.2d From the evidence given there is no proof showing that the appellant actually removed or unfastened the clothing of Delores Ann ......
  • Hashfield v. State, 30360
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1965
    ...does not correctly state the component elements of the crime, which are both an evil intent and an overt act. Markiton v. State (1957), 236 Ind. 232, 139 N.E.2d 440. Later, in the same sentence, another erroneous clause follows: 'prohibition and punishment rests primarily on the moral right......
  • Pedrick v. State, 49A05-9108-CR-270
    • United States
    • Indiana Court of Appeals of Indiana
    • June 16, 1992 an inference that he touched the children with a sexual intent. In support of his argument Pedrick cites Markiton v. State (1957), 236 Ind. 232, 139 N.E.2d 440, a case in which the defendant was convicted of "assault and battery-sex." The evidence showed that Markiton touched the br......
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