Shephard v. State, No. 28141.

Docket NºNo. 28141.
Citation224 Ind. 356, 67 N.E.2d 534
Case DateJuly 01, 1946
CourtSupreme Court of Indiana

224 Ind. 356
67 N.E.2d 534

SHEPHARD
v.
STATE.

No. 28141.

Supreme Court of Indiana.

July 1, 1946.


Albert Shephard was convicted of rape, and he appeals.

Reversed, with instructions.

[67 N.E.2d 534]

Appeal from Lake Criminal Court; William J. Murray, Judge.
Oscar B. Thiel and Herman L. Key, both of Gary, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, First Asst. Atty. Gen., for appellee.


O'MALLEY, Judge.

This appellant was charged with rape under Sec. 10-4201, Burns' 1942 Replacement.

The intercourse charged in the affidavit was admitted and described by both of the participants. Both testified that there was consent to the act. However, the prosecuting witness claimed that consent was given because it was hoped that appellant would prevent the ravishment of her younger sister, after his own desires were satisfied.

To sustain the charge under the statute it was incumbent on the State to prove beyond a reasonable doubt that the act was against the will of the female participant. There was no fraud, trick, or deceit, and while it is claimed that the consent was given to protect the sister, both acts were being committed at the same time in different seats of an automobile.

[67 N.E.2d 535]

The facts show at most a broken promise to prevent the other act, without any showing of opportunity or ability on the part of the appellant to prevent the commission of rape on the younger sister.

We realize that the resistance necessary in each particular case must be dependent upon the surrounding circumstances. Eberhart v. State, 1893, 134 Ind. 651, 34 N.E. 637 and cases cited. We also understand that it is impossible to make a rule applicable to all cases of this type which necessarily require proof of reasonable resistance. See Underhill's Criminal Evidence, 4th Ed., Sec. 675. However, no authority has been cited in support of the proposition that the facts in this case are sufficient to prove that the act was against the will of the female participant. Furthermore, our efforts to find support for such proposition have been unavailing. It seems to us that the evidence does not permit the conclusion that it was against the will of the female. It is therefore insufficient to sustain the decision.

The judgment is reversed with instructions to the lower court to sustain the motion for a new trial.

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7 practice notes
  • Stowers v. State, No. 1176S373
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Junio 1977
    ...or court finding that the alleged intercourse occurred 'forcibly against the will' of the alleged victim. Shephard v. State (1946), 224 Ind. 356, 67 N.E.2d 534; Carroll v. State, supra; Dixon v. State, supra. The term 'resistance' does not appear in the statute defining the offense of rape.......
  • Buchanan v. State, No. 3--675A104
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Mayo 1976
    ...upon the State to demonstrate that the act of intercourse was accomplished against the will of the victim. Shephard v. State (1946), 224 Ind. 356, 67 N.E.2d 534. However, the degree of resistance required of a victim in an attempt to prevent the sexual act is a question of fact and is to be......
  • Taylor v. Altgelt, No. 28187.
    • United States
    • Indiana Supreme Court of Indiana
    • 1 Julio 1946
    ...seems to be that when the evidence is undisputed and only one legitimate inference can be drawn therefrom, a verdict should be directed. [67 N.E.2d 534]Buddenberg v. Morgan, 1942, 110 Ind.App. 609, 628, 38 N.E.2d 287, 294. See Mesel v. Farmers', etc., Bank, 1932, 95 Ind.App. 33, 178 N.E. 30......
  • Spaulding v. State, No. 1076S359
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Marzo 1978
    ...contends that the State must establish that the act was done against the will of the [268 Ind. 26] victim, Shephard v. State, (1946) 224 Ind. 356, 67 N.E.2d 534, he incorrectly states the law as to the evidence required to prove this element. Defendant's tendered instruction might imply tha......
  • Request a trial to view additional results
7 cases
  • Stowers v. State, No. 1176S373
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Junio 1977
    ...or court finding that the alleged intercourse occurred 'forcibly against the will' of the alleged victim. Shephard v. State (1946), 224 Ind. 356, 67 N.E.2d 534; Carroll v. State, supra; Dixon v. State, supra. The term 'resistance' does not appear in the statute defining the offense of rape.......
  • Buchanan v. State, No. 3--675A104
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Mayo 1976
    ...upon the State to demonstrate that the act of intercourse was accomplished against the will of the victim. Shephard v. State (1946), 224 Ind. 356, 67 N.E.2d 534. However, the degree of resistance required of a victim in an attempt to prevent the sexual act is a question of fact and is to be......
  • Taylor v. Altgelt, No. 28187.
    • United States
    • Indiana Supreme Court of Indiana
    • 1 Julio 1946
    ...seems to be that when the evidence is undisputed and only one legitimate inference can be drawn therefrom, a verdict should be directed. [67 N.E.2d 534]Buddenberg v. Morgan, 1942, 110 Ind.App. 609, 628, 38 N.E.2d 287, 294. See Mesel v. Farmers', etc., Bank, 1932, 95 Ind.App. 33, 178 N.E. 30......
  • Spaulding v. State, No. 1076S359
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Marzo 1978
    ...contends that the State must establish that the act was done against the will of the [268 Ind. 26] victim, Shephard v. State, (1946) 224 Ind. 356, 67 N.E.2d 534, he incorrectly states the law as to the evidence required to prove this element. Defendant's tendered instruction might imply tha......
  • Request a trial to view additional results

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