Wilson v. State

• Decision Date: 05 March 1970
• Docket Number: No. 769,769
• Citation: 253 Ind. 585,255 N.E.2d 817
• Parties: Gerald WILSON, Appellant, v. STATE of Indiana, Appellee. S 146.
• Court: Indiana Supreme Court

Page 817

255 N.E.2d 817

253 Ind. 585

Gerald WILSON, Appellant, v. STATE of Indiana, Appellee.

No. 769 S 146.

Supreme Court of Indiana.

March 5, 1970.

Frederick J. Graf, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Aaron T. Jahr, Robert F. Hassett, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

Appellant was charged in an indictment with kidnap and rape. Trial by jury resulted in a conviction on each count. Various alleged errors are urged upon us. They will be dealt with as they are presented.

Appellant first contends there is insufficient evidence to support the jurys' finding of guilty. Appellant does not point out wherein he believes the evidence is insufficient but contents himself with this very broad and general assertion. We believe the argument has no basis in fact. The statutes pertinent to the charges herein involved read as follows:

Burns' Ind.Stat.Ann. § 10--2901. 'Kidnapping.--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, and, on conviction shall be imprisoned in the state prison during life.'

Burns' Ind.Stat.Ann. § 10--4201. 'Rape--Penalty.--Whoever has carnal knowledge of a woman forcibly against her will, or of a female child under the age of sixteen (16) years * * * is guilty of rape, and on conviction shall be imprisoned not less than two (2) years nor more than twenty-one (21) years * * *'

The record reveals that as the prosecutrix was getting out of her automobile, to enter her apartment, the appellant forced her at knife-point back into the car. He then proceeded to drive the car to the Southport Bridge in Marion County. He had the knife at her side all the while. Upon descending to the banks of the White River appellant told the victim not to scream and he would not hurt her. She refused to disrobe. Appellant then pulled her dress down around her shoulders and pulled up her skirt. He forced her to lie down at knife-point. Appellant then had intercourse with the prosecutrix and tried to strangle her for her failure to cooperate. Upon completion of the attack appellant said he was going to detain the prosecutrix for several weeks. Appellant was finally conviced to return the prosecutrix to her apartment.

We find it difficult to imagine wherein appellant believes the evidence fails to support the charges and findings. To the contrary, the record is replete with substantial evidence of probative value to support the findings of the jury. Bush v. State (1968), Ind., 37 N.E.2d 584.

Appellant next argues that the trial court erred in refusing to strike certain evidence and testimony relating to identification of appellant as the perpetrator of the crimes. We first note that appellant failed to make any motion to suppress or timely object to the evidence and therefore the issue is not saved on appeal. The evidence discloses that on November 26, 1967, the prosecutrix was kidnapped and raped. The following day she gave the police a detailed dscription of her assailant, including his size, clothing, voice and physical features. She was shown many pictures of sex offenders. She did not identify any of them as her assailant. Because of the description she gave of her assailant she was taken on to the Johnson County Jail on December 2, 1967, to see whether she could make an identification of a prisoner. As she entered the jailhouse she saw a drivers license on a table. The license had a picture of the appellant on it. The prosecutrix immediately said, 'That's him'. The prosecutrix previously had said that her assailant told her he had just arrived from Colorado. The license was a Colorado license. When the prosecutrix saw appellant she identified him as her assailant. At the time he turned away from her in an attempt to hide his face.

There was no question in the prosecutrix's mind as to the identity of her assailant. She stated she was with the appellant for about one (1) hour. He talked to her freely and made no attempt to conceal his identity. He attempted to persuade her to have another rendezvous with him, but to no avail. She had ample opportunity to take notice of his clothing and physical characteristics. This is not a case of a witness merely getting a fleeting glimpse of a fleeing suspect. The prosecutrix testified as follows:

Q. Now your testimony this afternoon, is this from your recollection of this event in identifying the defendant, I mean the rape and kidnapping?

A. Yes, sir.

Q. What is the fact as to how you have been able to sleep since this occurred?

objection overruled)

Q. Do you remember the question?

A. Yes, sir. I don't sleep very well. As far as forgetting what he looked like, I don't think I could.

Q. Do you dream about it?

A. Constantly. I have nightmares.

Q. In these dreams what do you see?

(objection overruled)

A. I have dreams about this defendant coming at me with a knife and I don't think I would ever forget his face, not when it is connected with something as unpleasant as this.

Q. Were you able to see his teeth on the night this occurred and how were they?

A. They were crooked.

Q. Is there any question in your mind at all about this defendant being the one?

A. No, sir, no question at all.

Q. You fully realize what faces him on his conviction, do you not?

A. Yes, sir, I do.

We further note that there was testimony by another woman that appellant had once abducted her in her own automobile at gun-point for the purpose, as he put it, of raping her, but, being thwarted in his attempts to find a suitable location to assault her, he fled from the automobile. She also made a positive in-court identification of the appellant.

On the basis of the record before us we therefore find that the in-court identification of the appellant by the prosecutrix as her assailant had a sufficient independent origin from the alleged prejudicial pre-trial confrontation. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Under the circumstances here any error in admitting testimony concerning the pre-trial identification would be harmless. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065.

Appellant also urges the trial court erred in giving final instruction no. 27 to the jury. That instruction reads as follows:

'INSTRUCTION NUMBER 27'

'The Court further instructs you that the condition of mind which usually and immediately follows the excessive use of alcoholic liquors is not, in and of itself, the unsoundness of mind meant by our law. Mere voluntary drunkeness or intoxication does not excuse crime and a defendant cannot escape punishment for a crime on the ground that he did an alleged unlawful act while drunk: and such drunkeness and/or intoxication does not lessen or abate the severity of punishment prescribed by law.

'In other words, mere voluntary drunkeness or intoxication is no excuse for crime, nor does it in any degree mitigate or palliate an offense actually committed.'

Appellant's objection to this instruction is at best difficult to discern. An indication as to the nature of the objection appears in appellant's reply brief wherein it is stated: 'By striking a portion of the instruction, the court created confusion in the minds of the jurors (assuming they were listening) and suggested the existence of material facts which were contested and were not admittedly in existence.' We can see no error or confusion inherent in the instruction. The instruction correctly states the law.

We next move to appellant's contention of jury misconduct. It is argued that the panel of jurors was guilty of misconduct tending to prevent a fair and due consideration of...