Marshall v. State, 28408.

• Docket Nº: No. 28408.
• Citation: 227 Ind. 1, 83 N.E.2d 763
• Case Date: February 03, 1949
• Court: Supreme Court of Indiana

227 Ind. 1
83 N.E.2d 763

MARSHALL
v.
STATE.

No. 28408.

Supreme Court of Indiana.

Feb. 3, 1949.

Oliver Marshall was convicted of kidnapping, and he appeals.

Judgment affirmed.

[83 N.E.2d 764]

Appeal from Randolph Circuit Court, John W. Macy, Judge.
James P. Dunn and Ernest M. Dunn, both of Union City, for appellant.

Cleon H. Foust, Atty. Gen., J. Emmett McNamon, of Indianapolis, Frank E. Coughlin, First Deputy Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee.

YOUNG, Judge.

Appellant was charged with kidnaping a 16 year old girl in Wayne County, Indiana. The affidavit against him was filed in the Circuit Court of that county. Subsequently the venue was changed to the Randolph Circuit Court where the case was tried before a jury, which returned a verdict of guilty.

The statute alleged to have been violated is § 10–2901, Burns' 1933, which, so far as it is material in consideration of this case, reads as follows: ‘Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, * * * any person, * * * is guilty of kidnaping, and, on conviction, shall be imprisoned in the state prison during life.’

The affidavit upon which appellant was tried charged that he, on the 13th day of October, 1946, at and in the County of Wayne and State of Indiana, did then and there unlawfully, feloniously and fraudulently and forcibly carry off, decoy and kidnap a named girl from one described place to another described place in the City of Richmond, Wayne County, Indiana.

Immediately after the verdict was returned, the court entered judgment and sentenced the appellant to the Indiana

[83 N.E.2d 765]

state reformatory for life. On the following day the court, without notice, altered the judgment to provide that appellant serve his sentence in the Indiana state prison instead of the reformatory.

Appellant filed a motion for a new trial, which was overruled, and assigns as error in this court the overruling of such motion and that the court had no jurisdiction of the cause.

Appellant bases his contention that the court had no jurisdiction of the cause on the claim that the prosecuting attorney of Randolph County did not appear or participate in the trial of the cause. The bill of exceptions shows that the State was represented at the trial by Philip H. Robbins, prosecuting attorney for Wayne, County, Indiana, Clifford Haworth, deputy prosecutor for Wayne County and Nathan Mendenhall, as special prosecuting attorney for Randolph County, Indiana.

Prosecuting attorneys may appoint such deputies as may be necessary for the proper discharge of the duties imposed by law, § 49–2602, Burns' 1933, but appellant points out that the statute providing compensation for the prosecuting attorney of Randolph County does not provide for compensation to a deputy, and it is appellant's contention that for this reason no deputy properly could be employed by the Randolph County prosecutor. This does not seem to us to follow. The statute clearly gives all prosecutors the power to appoint deputies and it is conceivable that a prosecutor under certain circumstances would be willing to pay a deputy from his own salary or that a deputy might be willing to serve without compensation. Also upon the proper showing and under certain circumstances, the court may appoint a special prosecuting attorney. § 49–2505, Burns' 1933; Perfect v. State, 1923, 197 Ind. 401, 406, 141 N.E. 52;Williams v. State, 1919, 188 Ind. 283, 301, 302, 123 N.E. 209, and case cited. It is true that there is no showing that the court did so in this case, but it does appear that a special prosecuting attorney appeared. The Randolph Circuit Court is a constitutional court of general jurisdiction, and in the absence of a showing to the contrary we will assume that proceedings were regular and that the special prosecuting attorney was duly appointed. Williams v. State, supra, 188 Ind. at page 301, 123 N.E. at page 209.Wisconsin Nat. Life Ins. Co. v. Meixel, 1943, 221 Ind. 650, 654, 51 N.E.2d 78;Ferrara v. Genduso, 1940, 216 Ind. 346, 348, 24 N.E.2d 692. We also note that the prosecuting attorney of Wayne County and his deputy followed the case to Randolph County and were active in its prosecution. This is common practice and appellant has not pointed out any irregularity or illegality in this respect. Also appellant made no objection to proceeding with the trial in the absence of the prosecuting attorney of Randolph County, and, having gone ahead with the trial, perhaps in the hope of a better chance of acquittal without him, he cannot upon the return of an adverse verdict now complain.

In his motion for a new trial appellant sets out numerous grounds. Among the reasons for a new trial properly set out in his motion is that the verdict was not sustained by sufficient evidence. Because it is fundamental we will consider that ground first. The prosecuting witness testified that, on the evening in question, she and another girl went to a dance pavilion in Richmond with two boys in an automobile belonging to one of the boys. They drank more than they should and one of the boys became involved in a fight and found himself scratched, bruised and bloody, and they left the dance pavilion for a restaurant not far away and the boy, who had been in the fight, double parked his car and went inside the restaurant to clean up. They left the prosecuting witness in the car. A little later one of the boys came out to move the car from its double parked position and parked it in an alley alongside the restaurant. He then went back into the restaurant further to help his friend. Several witnesses testified to seeing the appellant in front of the restaurant at the time the prosecuting witness and her party drove up. The prosecuting witness also testified that after the car had been moved and while she was sitting in it the appellant came to the car and opened the door and told her that she was wanted inside the restaurant. She

[83 N.E.2d 766]

stepped out of the car and she testified that the appellant thereupon struck her and choked her and, threatening her with a revolver, forcibly led her down an alley and through backways across railroad tracks a distance of a half mile or more to a weed patch where he threw her to the ground, removed some of her clothing, committed rape and sodomy upon her, stamped on her body, took her watch and bracelet and then led her to a railroad, where he left her in a semi-conscious condition on the track. She finally made her way home and her family called a physician and the police. The police testified that they located appellant from the description given by the girl and that the girl identified the appellant. The girl also identified the appellant at the trial. The police found the girl's gold watch and gold bracelet in the...