Thompson v. State
| Decision Date | 13 February 1939 |
| Docket Number | 27097. |
| Citation | 19 N.E.2d 165,215 Ind. 129 |
| Parties | THOMPSON v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Boone Circuit Court; Edgar A. Rice, Special judge.
Scifres & Hollingsworth, of Lebanon, for appellant.
Omer Stokes Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for the State.
Appellant was charged by affidavit with the crime of kidnapping as defined by § 10-2901, Burns' St.Ann.1933, Sec. 2418 Baldwin's Ind.St.1934. There was a motion to quash the affidavit, which was overruled. Trial was had by jury, which returned a verdict of guilty. The court overruled appellant's motion for a new trial. The errors assigned relate to the overruling the motion to quash, and his motion for a new trial.
The affidavit upon which appellant was tried, omitting the formal parts, reads as follows:
Appellant says that the affidavit is defective in that it does not allege an intent to kidnap or state facts which on their face show intent to kidnap.
The statute defining the offense reads as follows: '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 Kidnapping * * *.'
The question presented by the motion to quash was before this court in the case of Boes v. State, 1890, 125 Ind 205, 25 N.E. 218. The following excerpt from that opinion is sufficient.
'As we construe this statute, it is composed of two branches or subdivisions. To constitute a crime under the first subdivision, there must be a carrying, or decoying of the person, against whom the wrong is committed, away from his place of residence, forcibly or fraudulently.
'Under the second subdivision, to constitute the crime, it is not necessary that the person, against whom the wrong is committed, be compelled or induced, to leave his place of residence. State v. Sutton, 116 Ind. 527, 19 N.E. 602; State v. Kimmerling , 24 N.E. 722.
'The definition given to the crime in the first subdivision necessarily involves an intentional carrying or decoying away from the place of residence; and hence the legislature could have had no purpose in including, as a part of the definition of the crime, under that subdivision, the words 'with the intention of having such person carried away from his place of residence.' It would be mere tautology.
'But under the second subdivision the crime intended to be embraced in the said statute would be incompletely defined without the employment of the said words.'
We hold that the affidavit was sufficient.
In order to properly understand the evidence it is necessary to have in mind the various names of the various actors. The prosecuting witness was Rosalie Hawkins, a girl seventeen years of age. Rosa Frazier, the grandmother of Rosalie Hawkins, and with whom Rosalie had lived since she was a few days old, and as she stated, was the only mother she ever knew. David Harold, uncle of Rosalie Hawkins, and the son of Rosa Frazier, and who was twenty-nine years of age. These three lived together as one family on a farm a short distance east of Terhune, Boone County, Indiana. Roy Thompson about thirty-two years old, and a mechanic by trade; Max Martin, a friend of appellant; Chester Ogle, boy friend of Rosalie Hawkins, and to whom she was engaged.
Appellant and Max Martin met Rosalie Hawkins, Rosa Frazier and Eddie Spencer on Sunday July 28, 1935, at the home of a Mrs. Hayworth, who lived just west of Indianapolis. It appears that appellant and Rosalie Hawkins became very friendly a short time after they met, and he took her home that evening accompanied by Max Martin, He and Max Martin went to the Frazier home again on Monday or Tuesday night. Arrangements were made to go to Louisville, Kentucky, the following Friday. The party was to be composed of appellant, Rosalie Hawkins, Rosa Frazier, Eddie Spencer and Max Martin. It seems that Chester Ogle was present when arrangements for this trip were made, but made no objections. Instead of waiting until Friday to start to Louisville, appellant and Max Martin drove to the Frazier home Thursday evening, and the party started for Louisville that night about 10:00 o'clock and arrived at Louisville about six or seven o'clock Friday morning. They left Louisville about three that afternoon arriving home about 10:00 o'clock that night.
On Saturday night about 8:00 o'clock appellant and Max Martin again went to the Frazier home. When they arrived they found Rosalie Hawkins, Chester Ogle, Rosa Frazier and Eddie Spencer in the home. Chester Ogle and Rosalie Hawkins were in the kitchen together. Appellant went into the kitchen, and Max Martin came in and some one said something about going to a dance, some place in the neighborhood. Rosalie Hawkins refused to go. Then the suggestion was made that they take a drive. Again Rosalie objected. Rosa Frazier and appellant went to Terhune and got a pint of liquor. They returned in about one and one-half hours. When they got home appellant went around the house on the west side and testified that he found Chester Ogle and the prosecuting witness in a compromising position. That they jumped up and ran around to the back porch. Rosalie Hawkins testified that they were not under the tree on the west side of the house, but were sitting on the back porch when appellant came around there. Anyway a quarrel between appellant and Rosalie started. All agree that appellant said that Rosalie and Chester should get married, and that he insisted they marry right away. Chester said he did not have enough money. Appellant offered to furnish the money and to get Chester a job. Rosalie stated that she did not want his dirty money. Rosalie was crying and talking loudly. It was during this quarrel that appellant told Chester Ogle that he (appellant) was in love with Rosalie, and that she had promised to marry him. That they became engaged on the return trip from Louisville. He also said that he had had sexual intercourse with Rosalie while on the Louisville trip, and offered to prove it by Mrs. Frazier and Max Martin. Rosalie testified that the question was put to Mrs. Frazier and Max Martin and that they both nodded their heads, yes. During most of this time Rosalie was crying. Max Martin in the meantime had lain down on one of the beds and gone to sleep. Chester Ogle's brother came along about midnight, and Chester left and went home with him. After Chester left Rosalie testified something was said by appellant to the effect that he would kill Chester Ogle if he (Chester Ogle) didn't marry Rosalie and that Chester and Rosalie had to get married. That appellant said something about machine guns. About one o'clock appellant told Rosalie to take off her clothes and go to bed. That she did. Soon after she got in bed appellant came in her bedroom and told her to get up. Rosalie inquired what for, and appellant replied, that she would find out soon enough. Rosalie got up, and dressed and Rosa Frazier, Rosalie Hawkins and appellant went out and got in appellant's car. Appellant walked beside Rosalie, and had hold of her arm. When they reached the car appellant opened the back door, and Rosalie got in the back seat. Appellant asked Mrs. Frazier if she didn't think Rosalie should ride in the front seat with him. Rosalie got in the front seat with appellant and Mrs. Frazier in the rear seat. This was about 1:30 A. M. Sunday morning. They drove west about 3/4 of a mile, south 1 mile, west 1 1/2 miles, south 1 mile when they came to a cemetery. Here appellant stopped his car and flashed his lights off and on. Rosalie asked what he was doing, and he answered that he was signaling his machine gun men. That they...
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