Utley v. State
| Decision Date | 06 April 1950 |
| Docket Number | No. 28531,28531 |
| Citation | 228 Ind. 210,91 N.E.2d 355 |
| Parties | UTLEY v. STATE. |
| Court | Indiana Supreme Court |
Thurl C. Rhodes, Indianapolis, for appellant.
J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.
This is an appeal from a judgment on a verdict finding appellant guilty of kidnapping as defined by § 10-2901, Burns, 1942, Repl., Acts 1905, Ch. 169, § 358, p. 584, 1929, Ch. 154, § 1, p. 477. He was sentenced to imprisonment for life. The error relied upon for a reversal is the overruling by the trial court of appellant's motion for a new trial.
There is no substantial conflict in any material part of the evidence, which discloses that the offense was committed as follows: Sunday morning at about 12:30 a. m., March 21, 1948, Andrew Perkins, who had the nickname of 'Big Perk', had just closed his grocery store, located at 787 and 789, Indiana Avenue, Indianapolis, Indiana, and in company with George Andrew Saunders, had entered his automobile, which was parked on St. Clair Street headed west near Indiana Avenue. Appellant approached the automobile, and with a drawn revolver ordered Perkins and Saunders to get on the floor behind the front seat, and to hold their hands out, in which position they remained until they were ordered out of the car about thirty minutes later. As soon as the victims were made prisoners, Utley whistled for an accomplice, who came to the car, and drove under the directions of Utley. During the drive Utley searched and robbed Saunders and Perkins, taking $10.31 from Saunders, and between $300 and $400 from Perkins. A wrist watch and revolver were also stolen from Perkins.
The car was stopped in the country and both prisoners were ordered out in a cornfield, but a car with lights was approaching, and they were ordered back into the car, and driven some further distance, when the car was again stopped in the country and both prisoners ordered out. Utley and his accomplice then talked about killing them, and Perkins promised to pay some money to Utley when he sent somebody after it. Utley and his companion drove away, and Perkins and Saunders began walking to call for help. A passing motorist volunteered to notify the sheriff, which was done, and a sheriff's deputy came out to investigate the crime.
Later the same night, between three and four o'clock A.M., one Southern and Utley sought admission to the Three-C Club at 2705 1/2 Northwestern Avenue, Indianapolis. This was an unincorporated, private organization with a club room or rooms on the second floor, where the members, as disclosed by the record, repaired for the purpose of conversation and playing ping pong. Pursuant to an established rule and policy of the club, enforced by the president-secretary, all gentlemen, before gaining admission, were searched and their knives and guns removed and deposited with the doorman for safe keeping, and returned to their respective possessors when they left the club quarters. Southern submitted to the regular search, which disclosed no knife or gun, and joined the other members at the rear of the quarters, but Utley refused to submit to a search or to leave. When he insisted on coming in, a scuffle occurred between him and several members of the club. He drew a gun, which was taken from him, and also another gun was taken, which was the gun he had just stolen from Perkins. Utley was kicked down stairs and never gained admission to the club quarters. Both guns were turned over to the Indianapolis Police officers the following Monday, on which day Utley was arrested and identified by Perkins and Saunders as the one who had kidnapped them. Southern was jointly charged and tried with appellant, but he was acquitted by the jury.
At the close of all the State's evidence in chief, appellant filed a motion to require the court to instruct the jury to return a verdict of not guilty. This motion was overruled. Appellant then introduced evidence in his behalf. Any error in overruling the motion was waived by the introduction of evidence by the appellant in his own behalf. White v. State, 1944, 222 Ind. 423, 54 N.E.2d 106; Fausett v. State, 1942, 219 Ind. 500, 39 N.E.2d...
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