Walker v. State, 25936.

• Decision Date: 06 March 1934
• Docket Number: No. 25936.,25936.
• Parties: WALKER v. STATE.
• Court: Indiana Supreme Court

206 Ind. 232

189 N.E. 127

WALKER

v.STATE.

No. 25936.

Supreme Court of Indiana.

March 6, 1934.

Appeal from Criminal Court, Marion County; J. Collins, Judge.

James Walker was convicted of kidnapping, rape, and automobile banditry, and he appeals.

Affirmed.Frank Williams and W. S. Henry, both of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

HUGHES, Judge.

This is a criminal action by the state of Indiana against the appellant by indictment in three counts, charging kidnapping, rape, and automobile banditry. He entered a plea of not guilty to each count and was tried by the court and found guilty upon each count. On the first count he was fined in the sum of $1,000, and sentenced to the Indiana State Prison for a period of not less than two nor more than fourteen years; on the second count he was sentenced for a term of not less than five nor more than twenty-one years; and on the third count he was sentenced for fifteen years.

The only proper assignment of error is that the court erred in overruling the defendant's motion for a new trial. The causes for a new trial are: (1) That the finding of the court is not sustained by sufficient evidence; (2) that the finding of the court is contrary to law; (3) that the court erred in overruling defendant's motion that he be discharged and go acquitted at the conclusion of the state's evidence; and (4) that the defendant was taken by surprise at the evidence given by Edward Davis.

The prosecuting witness, Mary Conrad, testified that on the night of January 10, 1930, as she was returning to her home from the Indiana Telephone Company's office where she was employed, an automobile drew up to the sidewalk at her side and a colored man jumped out of the automobile, grabbed her, and threw her in the automobile. Another colored man was at the wheel and he drove away, the distance and place she did not know. A scarf was tied over her eyes so that she could not see. Both of the men had sexual intercourse with her by force and against her will. She could not identify either man-other than they were colored and one had a mustache and the other was clean shaven.

There was some evidence given tending to show that the appellant and Davis on the night in question stole the automobile in which they were riding. The evidence on this question was slight; but, for the purpose of this case, it makes no difference whether the automobile was stolen or not, for the fact remains that they had an automobile to assist in accomplishing their design and purpose.

One of the reasons assigned as a motion for a new trial is that the defendant was taken by surprise at the evidence given by Davis, who was indicted with Walker. Davis, a few days prior to the trial of the appellant, was tried and found guilty of raping and kidnapping the said Mary Conrad on the night of January 10, 1930, while with the appellant. Davis was called as a witness on behalf of the state at the trial of appellant, and he testified that on the night in question he met the appellant at a certain restaurant in the city; that they went riding and that Walker said “he was going out and play with some women”; that they drove east and stopped their car; that a woman got off of the street car, and that he (Davis) grabbed her and put her in the car; that Walker was at the wheel and drove three or four miles; that he (Davis) was in the back seat with the woman and had intercourse with her while the car was moving; that Walker stopped the car and he (Davis) got out, and Walker then got in the car and had intercourse with the woman.

It appears from the record that prior to the time Walker was arrested Davis had been arrested and had made confession, which was reduced to writing, to Detective Sergeant William Miller, in which he admitted that he and Walker committed the crime as charged. On the trial of Davis, however, he denied his confession and said that neither he nor Walker committed the offense and that he was forced to sign the confession.

The record further shows that after Walker was arrested and taken to the police station Mrs. Conrad was called and Davis was then brought into the presence of Walker, Mrs. Conrad, and several other persons. The statement which had been made by Davis was read in the presence of all, including Walker, and he (Davis) said it was the...