Shipman v. State, No. 29956

Docket NºNo. 29956
Citation183 N.E.2d 823, 243 Ind. 245
Case DateJune 26, 1962
CourtSupreme Court of Indiana

Page 823

183 N.E.2d 823
243 Ind. 245
Jerry Midwinter SHIPMAN, Appellant,
v.
STATE of Indiana, Appellee.
No. 29956.
Supreme Court of Indiana.
June 26, 1962.
Rehearing Denied Sept. 24, 1962.

[243 Ind. 248]

Page 825

Richard M. Orr, Orr & Bridwell, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Richard M. Givan, Asst. Atty. Gen., Richard C. Johnson, Deputy Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

This is an appeal from a conviction upon an affidavit in two counts; count one charging kidnaping and count two charging assault and battery upon a female child under the age of 16 years with the intent to gratify sexual desires of the appellant.

A verdict of guilty was returned on both counts and appellant was sentenced to life imprisonment on count one, and for one to five years on count two.

Appellant here argues the following grounds as cause for reversal. (1) That neither count is supported [243 Ind. 249] by sufficient evidence. (2) That the court erred in allowing certain questions to be answered pertaining to the presence of Vodka bottles in appellant's automobile which subject was raised for the first time on re-direct examination. (3) That the trial court erred in allowing a physician of testify as to the presence of pain connected with the injuries sustained by the child on the ground that such a question was immaterial and served only to inflame and prejudice the jury. (4) That the court erred in allowing a leading question to be answered over the objection of the appellant. (5) That the court erred in allowing a child of seven and a child of nine and a half years of age to testify on the ground that neither of said children were qualified witnesses. (6) That the court erred in allowing a witness to testify as to a previous similar conduct of the appellant, and, (7) that the court erred in refusing two of appellant's tendered instructions.

We will consider the contentions raised by appellant in the order above presented. Was the evidence sufficient to sustain the charge of kidnaping? Appellant argues first that it is not shown that he either forcibly carried away the person with criminal intent, or that the person 'carried off' was taken without her consent. Neither of the above described acts are necessary elements of the crime of kidnaping The statute provides:

Page 826

'Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person, with the intention of having such person carried away from any place within this state, unless it be in pursuance of the laws of this state or of the United States, is guilty of kidnaping, and, on conviction, shall be imprisoned in the state prison [243 Ind. 250] during life.' Acts 1929, ch. 154, § 1, p. 477 [§ 10-2901, Burns' 1956 Repl.]. [Emphasis added.]

On July 31, 1959, appellant had been drinking beer at a tavern. He then left in his wife's 1951 Chrysler and subsequently went to buy some whiskey. Delores Ann Morgan was a girl seven years old. Her mother had sent her to the grocery about four houses south from their residence located at 2215 North New Jersey, Indianapolis, Marion County, Indiana. At about 3:30 P.M. appellant came by in the automobile and offered to take her to the grocery. She consented and got into the automobile. However, contrary to his representation, appellant drove past the grocery, although it was pointed out to him. Instead, he drove out in the country with the child. The child asked him to take her home but he did not do so. Instead, he drove about Marion County at various places with the child keeping her with him in the car over night. During this time he had two minor collisions. On both occasions he appeared to have been drinking. On one occasion he stated that he was wanted by the police. In the afternoon of the second day he returned the child to the vicinity of her home.

The facts above stated were sufficient to sustain the conviction for kidnaping. Contrary to the contention of appellant, it seems obvious that the consent which a seven year old child gives to an adult who decoys her away from her present place and environment by fraudulent representation does not negate the fact of kidnaping. In fact, the statute is expressly designed to penalize a person who 'fraudulently carries off or decoys from any place' a child under the circumstances here presented. § 10-2901, supra.

[243 Ind. 251] We next consider whether the evidence is sufficient to sustain the conviction as to Count 2 of the indictment. Upon this issue appellant argues that it was not shown that he had the intent to gratify his sexual desires or to frighten the child.

What are the facts as bearing upon this issue? Appellant, a man of 35 years of age enticed a seven year old child, who was a stranger to him, into his car and kept her with him over night and through the next day, over her protestation, returning her to the vicinity of her home the next afternoon with her clothes dirty and torn, her panties removed and her private organs injured, including a partial rupture of her hymenal membrane. Admittedly, there is no direct evidence that the child was molested by the appellant. However, there is evidence that the abuse to her person occurred while she was in the illicit control and custody of the appellant, and there is no evidence that the child committed the acts upon herself which caused the injury.

Thus the evidence against the appellant on Count 2 of the affidavit is circumstantial. However, this fact does not prevent it being sufficient to sustain a conviction. In the case of McCoy v. State (1958), 237 Ind. 654, 660, 148 N.E.2d 190, 193, it was stated as follows:

'[A] conviction may be sustained wholly on circumstantial evidence, if there is some substantial evidence of probative value from which a reasonable inference, that establishes the guilt of appellants beyond a reasonable doubt, may be drawn. Todd v. State (1951), 230 Ind. 85, 90, 101 N.E.2d 922; Myers v. State, 1954, 233 Ind. 66, 67, 116 N.E.2d 839.

'The true test of circumstantial evidence is whether 'in the order of natural

Page 827

causes and effects, the facts proved can be explained consistently[243 Ind. 252] with the innocence of the prisoner.' Beavers v. The State, 1877, 58 Ind. 530, 537.'

See also: Christen v. State (1950), 228 Ind. 30, 89 N.E.2d 445.

Furthermore, in support of this count of the affidavit, there is evidence that on a former occasion the appellant had spoken to a girl who was then eight years of age while she was on her way to school, and told her that 'Your mother told me to pick you up.' He then took her by the hand and walked away with her for several blocks when she realized that something was wrong. She bit him on the hand to free herself and ran from him.

In our opinion the facts in evidence are sufficient to convince men of reasonable minds as to the guilt of the accused beyond a reasonable doubt. They present a circumstance which from ordinary experience is much more consistent with the probability of guilt and not with the improbability of such guilt. Therefore, the evidence, although circumstantial, is sufficient to sustain the fact of intent as an element of the crime charged.

Appellant also contends that the judgment is not sustained by sufficient evidence because the state failed to prove the venue of the action. The evidence upon this issue discloses that appellant took the child in question from a street near her home in Indianapolis, Marion County, and returned her the next day to the same area. Several witnesses testified that in the interim 24 hour period appellant was seen with the girl in his car at various parts in Marion County.

In the case of Watts v. State (1950), 229 Ind. 80, 89, N.E.2d 570, 574, it was stated as follows:

[243 Ind. 253] 'No more direct evidence is required for the proof of venue than is required for the proof of any of the other matters required for conviction, and may be established by inference, Davis v. State, 1925, 196 Ind. 213, 147 N.E. 766.'

Under the above stated rule of law there was more than sufficient evidence to prove the venue in the case at bar.

Appellant also contends that the evidence was insufficient to sustain the judgment on the ground that under his plea of insanity the state failed to sustain its burden of proof as to his sanity. We recognize the fact that the burden of proving sanity, when the issue is raised, is upon the state. We further acknowledge the fact that testimony of the two psychiatrists who examined the appellant conflict upon the issue of insanity. However, it was the responsibility of the jury to consider the issue of insanity upon all the evidence which was before it upon that subject. The rule is well established that in event of conflict of evidence this court will not weigh the evidence on appeal. Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387; Coffer v. State (1959), 239 Ind. 22, 154 N.E.2d 371; Leslie v. State (1959), 239 Ind. 462, 158 N.E.2d 654; Lenovich v. State (1958), 238 Ind. 359, 150 N.E.2d 884; Mack v. State (1957), 236 Ind. 468, 139 N.E.2d 434.

We next consider appellant's contention that the trial court erred in admitting certain testimony on re-direct examination. The particular witness had testified on direct examination that on the evening of July 31 he had encountered the appellant with his car astraddle a fense at the side of the road at which time he observed the child in the car with the appellant. He testified that he observed that the appellant[243 Ind. 254] had been drinking. On cross-examination the appellant's counsel interrogated the witness extensively on the subject as to what he saw and smelled. The witness testified that he smelled the appellant's breath and saw four or five beer cans on the floor of his car. Thereafter, on re-direct examination the state asked the question: 'Did

Page 828

you see any Vodka bottles therebouts?'...

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45 practice notes
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of witnesses in allowing leading questions, Bayer v. State (1973), [166 Ind.App. 215] Ind.App., 303 N.E.2d 678; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823, or in allowing a question to be repeated, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d In the case at bar, the defendan......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1977
    ...v. State (1969), 251 Ind. 587, 244 N.E.2d 100; Morgan v. State (1962), 243 Ind. 315, 185 N.E.2d 15; Shipman v. Page 598 State (1962), 243 Ind. 245, 183 N.E.2d A study of the record in the case at bar indicates that the trial court conducted an examination of David Hunter which was sufficien......
  • Bimbow v. State, No. 2--873A187
    • United States
    • August 29, 1974
    ...also, Twomey v. State (1971), 256 Ind. 128, 267 N.E.2d 176; Johnson v. State (1970), 255 Ind. 324, 264 N.E.2d 57; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d Justice Hunter recently expanded on the rule in Hill v. State (1969), 252 Ind. 601, 251 N.E.2d 429: [161 Ind.App. 346] 'We emph......
  • Muehlman v. Keilman, No. 370S73
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1971
    ...160 Ind. 25, 66 N.E. 156; Week v. Rawie (1911), 48 Ind.App. 599, 96 N.E. 206. As to leading questions, see also, Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823, cert. den. 371 U.S. 958, 83 S.Ct. 515, 9 L.Ed.2d 504; Tecumseh Coal and Mining Co. v. Buck (1922), 192 Ind. 122, 135 N.E. 4......
  • Request a trial to view additional results
45 cases
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of witnesses in allowing leading questions, Bayer v. State (1973), [166 Ind.App. 215] Ind.App., 303 N.E.2d 678; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823, or in allowing a question to be repeated, Shuemak v. State (1970), 254 Ind. 117, 258 N.E.2d In the case at bar, the defendan......
  • Hunter v. State, No. 1--976A168
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1977
    ...v. State (1969), 251 Ind. 587, 244 N.E.2d 100; Morgan v. State (1962), 243 Ind. 315, 185 N.E.2d 15; Shipman v. Page 598 State (1962), 243 Ind. 245, 183 N.E.2d A study of the record in the case at bar indicates that the trial court conducted an examination of David Hunter which was sufficien......
  • Bimbow v. State, No. 2--873A187
    • United States
    • August 29, 1974
    ...also, Twomey v. State (1971), 256 Ind. 128, 267 N.E.2d 176; Johnson v. State (1970), 255 Ind. 324, 264 N.E.2d 57; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d Justice Hunter recently expanded on the rule in Hill v. State (1969), 252 Ind. 601, 251 N.E.2d 429: [161 Ind.App. 346] 'We emph......
  • Muehlman v. Keilman, No. 370S73
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1971
    ...160 Ind. 25, 66 N.E. 156; Week v. Rawie (1911), 48 Ind.App. 599, 96 N.E. 206. As to leading questions, see also, Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823, cert. den. 371 U.S. 958, 83 S.Ct. 515, 9 L.Ed.2d 504; Tecumseh Coal and Mining Co. v. Buck (1922), 192 Ind. 122, 135 N.E. 4......
  • Request a trial to view additional results

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