Parker v. State, 30201
| Decision Date | 08 November 1962 |
| Docket Number | No. 30201,30201 |
| Citation | 243 Ind. 482,185 N.E.2d 727 |
| Parties | Clare Van Der Bilt PARKER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harry S. Taylor, John L. Warrick, South Bend, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, Carl E. Van Dorn, Deputy Atty. Gen., for appellee.
The appellant was charged by affidavit with the crime of assault and battery with intent to gratify sexual desires under Burns' § 10-403. After a jury trial the appellant was found guilty and sentenced to one to five years in prison.
The appellant first claims that the trial court erred in overruling his motion to quash the indictment. However, an examination of the record shows that the appellant failed to list such a specification in his motion for a new trial, as required under Rule 2-6 of this court. We further point out that the motion to quash failed to include a memorandum, as required under Rule 1-3B of this court. The claimed error, therefore, is not before us for consideration.
The appellant next contends that the court erred in giving State's Instruction Number 11. The instruction reads as follows:
'STATE'S REQUESTED INSTRUCTION No. 11
'If you find from the evidence beyond a reasonable doubt that the Defendant herein did, in a rude and insolent manner touch the said Elizabeth Borrelli and did fondle or caress the body or a part thereof of the said Elizabeth Borrelli, she then being a female child under the age of sixteen years, to-wit: nine years of age on May 3, 1960, with intent to gratify the sexual desires or appetites of him the said Clare Vanderbilt Parker, or under circumstances which frightened or tended to frighten or excite the said Elizabeth Borrelli, then you may find the defendant herein guilty as charged in the affidavit; otherwise you shall acquit him.'
The objection made thereto is that 'it states three offenses in the alternative by the use of the word 'or' in four different places in said instruction and does not embrace that certainty required in criminal prosecutions.' In the argument section of appellant's brief he contends more specifically that 'the effect of this instruction would authorize a verdict of guilty if his acts tended to frighten said child, whether they did or did not actually frighten her, and irrespective as to whether such acts were done with intent to gratify sexual desires.' The instruction is in the language of the statute, and no constitutional reason is pointed out why the legislature may not make an act which 'tended to frighten the child' a crime under the circumstances alleged.
We are unable to follow the reasoning of the appellant that he could be convicted 'irrespective as to whether such acts were done with intent to gratify sexual desires' since both the statute and the instruction state that such intent is a necessary element. The appellant has failed to point out any defect in the instruction. Brown v. State (1959), 239 Ind. 358, 157 N.E.2d 174; Maxey v. State (1938), 214 Ind. 623, 16 N.E.2d 880.
The appellant next contends that Instruction Number 2 tendered by the State and given by the court was erroneous 'for the reason that while advising the jury they are the judges of the law, it limits such law as it is found in the statutes of our state.' The portion of the instruction objected to reads as follows:
'It means that jurors under...
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Norton v. State
...proper in several cases, including Holliday v. State, (1970) 254 Ind. 85, 90, 257 N.E.2d 679, 682, and Parker v. State, (1962) 243 Ind. 482, 485, 185 N.E.2d 727, 728. See Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517. Thus, this instruction was a correct statement of the law and was......
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Hale v. State, 30825
...to gratify his sexual desires. We would agree with the appellant that the facts at bar are not in the same vein as Parker v. State (1962), 243 Ind. 482, 185 N.E.2d 727; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823; Bush v. State (1957), 237 Ind. 280, 145 N.E.2d 10, in that in all t......
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Borosh v. State
...age of twelve years with an intent to gratify his sexual desires. Tapp v. State (1971), 256 Ind. 422, 269 N.E.2d 367; Parker v. State (1962), 243 Ind. 482, 185 N.E.2d 727; Simmons v. State (1975), Ind.App., 324 N.E.2d 513 (transfer denied); Shultz v. State (1973), Ind.App., 291 N.E.2d Appel......
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Rollins v. State
...248 Ind. 630, 634, 230 N.E.2d 432, 434, 'that (not) all cases must rise to the same degree of certainty (as did Parker v. State (1962), 243 Ind. 482, 185 N.E.2d 727; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823; Bush v. State (1957), 237 Ind. 280, 145 N.E.2d 10) as to the sufficien......