Miller v. State, No. 270S18

Docket NºNo. 270S18
Citation268 N.E.2d 299, 256 Ind. 296
Case DateApril 15, 1971
CourtSupreme Court of Indiana

Page 299

268 N.E.2d 299
256 Ind. 296
Perry Steven MILLER, Appellant,
v.
STATE of Indiana, Appellee.
No. 270S18.
Supreme Court of Indiana.
April 15, 1971.

[256 Ind. 297]

Page 300

Thomas J. Faulconer, Charles W. Symmes, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal from the Superior Court of Hamilton County wherein the defendant was charged by an affidavit with the crimes of kidnapping, sodomy, rape, and automobile banditry. He was found guilty of all charges after a trial by jury.

The evidence most favorable to the appellee indicates that on May 16, 1969, the victim of the rape was on her way to work shortly after 9:00 a.m. Thinking a motorist might need some assistance, she stopped and asked the defendant if he had run out of gas. He proceeded to get into her car, and after she drove a short way, pulled a gun on her. He forced her at gun point to stop the car and he then drove to a wooded area and they both went into the woods where he disrobed [256 Ind. 298] her. The victim testified: 'His pants were unzipped, his penis was out and he tried to get me, tried to get it into my mouth, and he finally did and when he did I bit him.' She further testified that he then forced her to engage in an act of sexual intercourse with him.

The defendant first contends that the trial court erred when, after the conclusion of the State's case in chief on September 11, 1969, the trial judge admonished the jury not to discuss the cause and then proceeded to state:

'We will reconvene tomorrow morning, however, inasmuch as the court has some matters at 9:30, including the sentencing of Mr. Johnson, that it must take care of, it will be necessary that we not convene until ten o'clock. So we will see you at ten o'clock tomorrow morning. You are released until that time and date.'

The objection the defendant makes is that the 'Johnson' referred to by the trial judge was also tried for rape and sodomy in the Hamilton Superior Court and that some of the members of the jury trying the defendant were members of the jury who convicted Johnson about two weeks before. We do not believe this prejudiced the defendant and further discussion on this point is unnecessary.

Defendant next argues that since the affidavit charged him with sodomy by oral copulation, it was incumbent upon the State to prove an emission. The State not having proved emission, the defendant contends that the court should have sustained the defendant's motion for a directed verdict as to Count II of the affidavit charging him with sodomy. In 48 Am.Jur., Sodomy, § 3, we find:

'Whether emission is necessary to constitute carnal knowledge in prosecutions for sodomy seems to have been unsettled in England prior to the enactment of the Statute of 9 Geo. IV, c. 31, but by it all doubts were removed. It declared that emission was not an essential element of this offense. In the United States, the courts have generally held that emission is not necessary to constitute the crime * * *.' (footnotes omitted)

[256 Ind. 299] Furthermore, the addition of the words 'by oral copulation' do not imply emission, but merely define more precisely that form of sodomy with which the defendant was charged.

Appellant objected to a rebuttal witness for the State testifying that on April 27, 1969, the defendant forced her at gun point

Page 301

to engage in an act of oral copulation. In Lamar v. State (1964), 245 Ind. 104, 109, 195 N.E.2d 98, 101, we stated:

'As an exception to the general rule, it is always permissible for the state, in actions involving abnormal sexual intercourse, to introduce evidence as to other improper acts of sexual intimacy committed by the defendant. Borolos v. State (1924), 194 Ind. 469, 473, 143 N.E. 360. * * *

'In effect, then, evidence regarding other similar sex offenses is admitted as tending to support the credibility of the prosecuting witness as his testimony is related to the particular offense charged. Ordinarily, such testimony is considered admissible as a part of the state's case in chief. Thus, it would seem reasonable to follow that, if such evidence was admissible before the credibility of the testimony of the prosecuting witness was placed in issue, such testimony would be all the more justified after the defendant had personally taken the stand and categorically denied having committed the offense regarding which the prosecuting witness testified.'

In Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629, the...

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45 practice notes
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...discretion of the trial judge and will be disturbed only if there is a clear showing of an abuse of discretion. Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299; Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128. In determining whether good cause exists, the trial judge may look to the ......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of the trial court the offenses were too remote. The Austin decision was not without support, however, because in Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299, the court had previously distinguished the Meeks case on the same basis that it applied only to rape cases where consent wa......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...The cases are uniformly in accord with this proposition. Yeary v. State (1971), Ind., 273 N.E.2d 96; Miller v. State (1971), Ind., 268 N.E.2d 299. We cannot answer Bald assertions of error that are not supported by legal authority. To do so would be to encourage inadequate and poor work on ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...makes a bald assertion of error unsupported with authority or cogent argument . . . and so waives the issue. See Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299: We further point out that the defendant cited no transcript reference and no authority substantiating these alleged errors a......
  • Request a trial to view additional results
45 cases
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...discretion of the trial judge and will be disturbed only if there is a clear showing of an abuse of discretion. Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299; Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128. In determining whether good cause exists, the trial judge may look to the ......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of the trial court the offenses were too remote. The Austin decision was not without support, however, because in Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299, the court had previously distinguished the Meeks case on the same basis that it applied only to rape cases where consent wa......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...The cases are uniformly in accord with this proposition. Yeary v. State (1971), Ind., 273 N.E.2d 96; Miller v. State (1971), Ind., 268 N.E.2d 299. We cannot answer Bald assertions of error that are not supported by legal authority. To do so would be to encourage inadequate and poor work on ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...makes a bald assertion of error unsupported with authority or cogent argument . . . and so waives the issue. See Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299: We further point out that the defendant cited no transcript reference and no authority substantiating these alleged errors a......
  • Request a trial to view additional results

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