Shipman v. State

irregularities only It is when or are the errors such proper the record court trial shows that jurisdiction parti enter the did have court not judgment enter, corpus cular which it did does habeas (See Dowd, lie. 8—Witte footnotes 7 and Warden v. 494, 495.) against judgment When trial court rendered- sentencing appellee, imprisonment for him a term of banditry, for ten for automobile and also sen- tenced him for term of not less than no ten- and twenty-five years more than for the offense included- . the-judgment robbery, robbery beyond was power jurisdiction render, ex- -was cessive and void as excess. suggested remedy concluding in the para

graphs majority opinion now available appellee for the reason the term-of court judgment at which rendered has terminated. remedy Even if appellee such still existed ..need not judgment avail of it himself the case at bar. the s . complained of is void and not erroneou Superior jurisdiction, The LaPorte Court had to ..en- ‘ grant appellee’s petition tertain and a' for Writ Judgment Corpus Habeas of the court should be affirmed. Reported in N. 184 E. 2d 4.

Note. —

Shipman v. State of Indiana. 29,956. 26, 1962. Rehearing Filed June denied [No. September 24, 1962.] Orr, Bridwell, of Indian- Richard M.

Orr & and apolis, appellant. for Steers, Attorney General, M. Richard

Edwin K. Attorney General, Richard Giman, and C. Assistant General, Johnson, Deputy Attorney appellee. appeal from a conviction J. —*This is an Achor, counts; charging upon one affidavit two an count charging bat kidnaping and count two assault years tery upon female child under the gratify ap intent sexual desires with the pellant. guilty on

A was returned both counts verdict imprisonment was sentenced life one, five on count and for one to two. count following grounds argues Appellant as here (1) supported neither for reversal. count cause That January..19, assigned to writer on case was *This (2) by in sufficient erred evidence. That court allowing questions pertaining certain be answered presence appellant’s auto- of Vodka bottles subject mobile which was raised for the first time (3) on re-direct examination. That court trial testify allowing physician a erred as to presence pain injuries of connected with the sus- by child, ground ques- tained a on the that such only tion was immaterial and served to inflame prejudice jury. (4) in allow- That erred court ing leading question over be answered the ob- jection appellant. (5) erred in the court That allowing seven, a child of of and a child nine and ground half testify, of on the that neither qualified (6) of said children were That witnesses. allowing testify court erred in witness previous and, appellant, similar conduct of the (7) refusing appel- erred in two of lant’s tendered instructions.

We appel consider will the contentions raised presented. lant in the order above Was the evidence charge kidnaping? sufficient sustain the argues Appellant it is shown first forcibly away he person either carried intent, with person criminal or that “carried off” was taken without her consent. Neither the above necessary described acts are elements the crime kidnaping. provides: The statutes kidnaps, “Whoever forcibly fraudulently or or decoys from, any place carries within this off

state, the imprisons any person, or arrests or having person away intention of such carried place any state, from within unless be in pursuance of the laws or of of this state States, guilty kidnaping, and, United viction, on con- imprisoned prison shall be the state 250

during 1, p. Acts. ch.. 477 § life.” 10-2901, Repl.]. [Emphasis Burns’ added.] [§ drinking, July 31, 1959, been beer appellant On had Chrysler, at a tavern.' He then his wife’s left in buy whiskey. subsequently some Delores went to Morgan girl years old. mother was a seven Her Ann grocery four south houses had sent her to about Jer- at 2215 North New from their residence- located sey! County, Indianapolis, Indiana. At about Marion- by appellant 3:30 P.M. in the automobile and came grocery. her She offered take consented got However, contrary into the automobile. to his grocery, representation, past al- drove though pointed Instead, it to him. he drove was out country asked the child. child out in the with home, Instead, him he did do so. to take her but not County places Marion at various he drove ábout night. child, him car keeping her with in the over On both During minor collisions. this time two he had drinking. On one appeared he have been occasions police. he wanted occasion he stated was day, he returned In the afternoon the second vicinity of her home. child to sustain above were sufficient The- facts stated Contrary to conten kidnaping. the conviction for con appellant, tion of seems obvious it gives year child an sent a seven old present decoys away her from her who adult representation place by fraudulent and environment fact, negate kidnaping. In does fact not person penalize designed expressly statute any decoys “fraudulently from carries off or who. pre here place” under a child circumstances - supra. §10-2901, entecL . . . (cid:127) consider whether evidence. We next is suffi- to sustain the as to cient Count conviction argues Upon issue, appellant indictment. gratify his shown he had the intent frighten or to

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

Thus evidence 2 on Count of However, affidavit circumstantial. this fact prevent being

does not it sufficient sustain McCoy a conviction. In the case of v. State (1958), 654, 660, 193, 190, 148 Ind. N. E. 2d as was stated follows: may wholly conviction sustained cir “[A] cumstantial evidence, if there is some substan probative tial of value from evidence inference, reasonable establishes guilt appellants beyond of a reasonable doubt, may (1951), v. be drawn. Todd State Myers 90, Ind. E. 2d N. v. State 66, 67, 116 233 Ind. N. 2d 839. E. “The of circumstantial true evidence is test ‘in order and ef- whether of natural causes proved explained

fects, the' facts' can be consist- prisoner.’ Beavers ently the innocence of the with See also:

v. The State 537.” 30, 89 (1950), 228 E. Christen State v. N. 2d

Furthermore, affi- support of this count davit, occasion that on former there eight girl spoken then who was had school, way her she was on while pick you up.” me her mother told “Your told away with her and walked then took hand He she realized some- her for several blocks when wrong. thing him on the hand to free She bit from him. and ran herself opinion, evidence are

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

Appellant is also contends that by evidence, because the state sustained sufficient prove action. the venue of the failed appel upon, that evidence this issue discloses question child from a street took the in lant Indianapolis, County, re in Marion near her home day wit turned her the next area. Several same the 4 period 2 in interim nesses testified that the hour girl appellant in with the his car at various was seen . parts County. in Marion 80, case Watts (1950), of v. 229 State

In Ind. 89, 570, 574, 95 N. E. 2d it stated was as follows:

253 required “No more direct evidence for the proof required proof of venue than is for of conviction, required any other matters may Davis be established inference. v. (1925), 213, 147 State 196 Ind. N. E. 766” Under the rule of there above stated law was more prove than the venue sufficient evidence case at bar.

Appellant in also contends that judgment ground to sustain sufficient on the that plea insanity, his under state failed proof sanity. sustain its burden as to his recognize We prov the fact that the burden of ing sanity, raised, upon when the issue acknowledge state. We further that testi fact mony psychiatrists ap of the two who examined the pellant upon insanity. However, conflict issue responsibility jury was the of the consider the insanity upon issue of all the evidence which was subject. upon before it The rule is well estab lished evidence, event of conflict of this court weigh appeal. will the evidence on Matthews v. (1959), 252, 387; State 239 156 Ind. N. E. 2d v. Coffer (1959), 371; State Ind. 2d N. E. Leslie v. (1959), 654; State E.N. 2d Lenovich 359, 150 v. State 238 Ind. E.N. 2d Mack v. 468, 139 State N. E. 2d appellant’s We consider contention next admitting trial court erred in testimony certain particular re-direct examination. The witness had testi- fied on evening direct examination on the July 31 had encountered the he car his road, astraddle a fence at side at ap- time observed the child car with he pellant. He testified he appel- that observed that drinking. ap-

lant cross-examination, had On been pellant’s interrogated extensive- counsel the witness subject ly on as- to he saw and The what smelled. appellant’s witness smelled testified he breath, four the floor and saw or five beer cans on Thereafter, of his car. examination the re-direct any question: state asked the Vodka “Did see objected Attorney appellant thereabouts?” bottles subject interrogation ground on the direct or mentioned either cross-examina- not objection, this The court overruled and it is tion. ruling Further- appellant here asserts error. which response more, it be’ the witness is to noted that nothing answered, “No, I question never saw Then examination coun- but beer cans.” on re-cross asking pursued by appellant sel for the issue question: Copple, Vodka could there' have been “Mr. you not to which the bottle the car and seen' it?” been, yes, replied, “There could have sir.” witness However, appellant’s contention is well taken. interrogation appears First, com because it plained the in was related to appellant, and that toxicated condition subject upon in matter was touched both and cross-examinations the witness. direct . the. Further, so, testimony properly admitted. If Was ques though may permitted have even order, appear does not tion answer and out thereby, first, anywise prejudiced appellant was-in thereto, negative secondly, answer because of the pursue' permitted and appellant was did because examination, subject on ré-cross matter same allegedly on. examination. order re-direct .was out within the scope examination is of re-direct although court, he of the trial discretion sound permits under evidence to be introduced such time, re-direct examination for this first not, ordinary circumstances, will under fact party opposite constitute reversible error unless the prevented interrogating is from further the witness subject presenting on the matter other evi testimony dence in of the if contradiction adduced it prejudicial position is his in the cir case. These appear do not case. Block cumstances Brazil Coal Co. v. K Gibson N. 882, 885; 415, 425, 426; (1959), 239 Wells v. State 256, 260, 261-262. N. E. 2d urges appellant

The that the trial erred in overruling objection given by its certain evidence doctor, witness, a as a state’s that effect pain usually present rupture amount with a hymenal “might dependent upon be membrane objection of the individual.” The made was: question.” is “It an immaterial objection question

An testimony illicits immaterial is not to raise sufficient appeal. any issue Brown v. Owen 94 Ind. 31.

Furthermore, subject it is to noted be question matter was material as to whether injury may not suffered the child have been probable self-inflicted. is not It child would injury upon inflict such herself which involved “a pain,” especially presence certain amount stranger. Next, argues was error for the leading question trial court to allow a to be answered objection. appellant’s question, objection, over The ruling court, of answer are as follows:

“Q. proceed put Then did handcuffs on the defendant? prosecutor leading the MR. MARTZ: again. question dif- witness He can ask

ferently. leading question Every THE COURT: proper objectionable. and will save This is time____Show objection some defendant’s overruled. my

A. Not to recollection.” leading question is to allowed is Whether a largely within the discretion trial decision appeal court. be shown that there On it must Webster v. State was an abuse of discretion. 52; Seymour 190 (1934), 206 E.N. Ind. 481, 144 (1924), 195 E. 30. v. Lebline N. Water Co. Ind. error, Also, appear to it must constitute reversible substantially injured by an appellant that was v.Weik Hilton v. Mason swer. appear Pugh does not that It permitting the to ask discretion court abused its state objects, appellant does it question nor by anywise injured appear the answer. give appellant’s conten- we consideration

Next error in committed reversible the trial court tion Morgan, allowing years Ann a child of seven Delores James, and a age, Frances a child nine Gail testify. half, to children, relating testimony under statute age, years follows:

ten following persons competent shall not be “The witnesses:

unless it ture “Second. obligation of appears that Children under ten an oath.” they understand the na- ^[10] Acts (Spec. age, 275, p. 2-1714, Sess.), Burns’ 1946 ch. § [§ Repl.]. The record the trial examined discloses length ruling both witnesses at before on their com- petency. Morgan, court,

Delores Ann when examined stated, part, as follows:

“Q. you Do lies tell ?

A. No.

Q. Why you get don’t tell lies? Don’t scared. just talking you. going are one We No you. you you hurt Do why know don’t tell lies?

A. No.

Q. you you supposed Do know are tell truth?

A. Yes.

Q. you supposed And are ? to tell lies No. A.

Q. you ever a lie? Would tell No.

A. Q. you you Do know that are asked tell when something asked to in court are tell just that? bit, you truth and not know lie A. Yes.

Q. you promise anything? Do you Do ever to do promise know ? what A. Yes.

Q. keep your you ... Do what it know to means promise? promise keep keep and not Don’t make you always it, Do you do know that? promises your ? A. Uhuh. something?

Q. promise me you Would A. Uhuh.

Q. promise tell the truth to- you me to Would day? A. Yes.

Q. you not And would tell lie?

A. No.

Q. promise me? you keep your would And A. Yes.” that, colloquy al- appear

It from would above though interrogation, witness indicated in earlier was, an she did oath' did not know what that she lie, the truth and knOw meant tell what knowledge agreed re- lack of to do. she [Her meaning garding “oath” can at- of the word be seven-year ordinary vocabulary of an tributed to the whole, answer," indicated Her taken as a old child.] telling between knew the difference she we lying. circumstances Under truth above permitting the say erred in the court cannot testify. witness court, James, when examined Frances

Gail part as follows: stated to tell the truth? you means Do know what it

“G. 'Yes. A.

Q. youDo truth? tell the A. Yes. Q. you up I have to You know have hold to— right promise your hand tell you say today Anything here has to truth? know the truth. You that? be n

A. Yes. don’t, you? you ;Q. bad if won’t You will (cid:127) A.'Yes. you that, I

Q. promise if ask do Will ? promise you tell truth will 259 A. Uhuh.

Q. anything your Mommy Did to do? tell A. She said truth.” to tell the person

Whether ten under the of shall be a testify allowed is decision the discretion of showing court, requires and it of trial require manifest of such discretion abuse 174, (1959), 239 reversal. Martin v. State Ind. 714; (1951), 241, 154 N. E. Butler v. State Ind. 2d 229 492; (1912), Tyreel 14, 97 N. E. 2d v. State 177 Ind. 14. 97 N.E. say

We cannot record before us an shows part abuse discretion trial allowing testify. the two witnesses to

Appellant urges next error it wás to allow questions pertaining Gail James to answer Frances. prior

his conduct act ob charged, over jection, for the reason that said was a witness surprise witness, for the further reason that of other only misconduct can evidence be admitted charged clearly proved. Appellant the crime after authority proposition no cites for evi have, should dence been excluded the reason that surprise the witness If the witness. defendant asking not file does state set its out a..motion witnesses, motion, then in absence of such prosecuting of the attorney failure effect names material witnesses endorse on the 1905, provided by 169, §119, p. affidavit as Acts ch. Repl.] merely prevent [§9-909, 1956 Burns’ asking for a the state from continuance for ..their 376; (1878), Siberry absence. Ind. v. Short v. State 33 N. State E. Ruffen barger 131 N. E. v. State admissibility

Furthermore, respect testimony, rule is well that when in settled sanity issue, an relevant con charged person with the crime is duct the (1960), State v. 241 Ind. admissible. Kiefer Kallas State 176, N. 169 E. 2d 227 Ind. v. 769, 103, 940, 336 69 83 N. 2d Cert. Den. U. S. E. 744, 93 L. 1098. S. Ed. Ct. urges

Finally, appellant that the court erred trial refusing his tendered and instructions

Appellant’s follows: tendered instruction was as responsible held “The is to be defendant not specific if he was to drunk for a the intent particular exercise will conscious words, end, or, drunk the too to intend in other and did entertain it in fact.” intent by appellant, refusal of the trial noted the As give quoted held instruction was to the above Eastin State (1954), 233 case to error v. be in the although 124, criti- 101, the court 117 N. E. 2d However, the Eastin the form of instruction. cized distinguishable bar, from the in that case is case at give an apparently instruction did not trial court may intoxication of the defendant effect that determining ques- by jury in considered be bar, another In the case at court in tion of intent. jury correctly mat- instructed instruction intent. Defendant’s tendered intoxication and ter of given as court’s instruction instruction follows: defendant under stat “In order convict the Battery Kidnapping with or ute for Assault Desires, it neces Gratify Sexual Intent satisfy jury beyond a reasonable sary entertained the the defendant doubt performed charged the acts

specific intent accomplish specific purpose. Mere drunkenness does not may produce excuse the offense but a it state incapacitates of mind party which from forming entertaining specific intent as the mental specific condition is such can- intent not be formed. by Whether condition caused this otherwise, party drunkeness or be cannot said have necessary committed an offense when ele- ment of specific which is done with a If jury specific intent. is finds intent missing from this defendants mind then guilty Kidnap- defendant should not be found ping Battery or Assault and Grat- Intent tify Sexual Desires.” quoted given above instruction as meets the requirements State, supra, Eastin v. and also Booher v. State 60 N. E. 156.

Tendered properly instructions are covered given other properly instructions are refused.

Lenovich (1958), v. State 359, 150 N. E. [supra]; 884 2d Flowers State v. 151, 139 185;

Ind. Stokes, N. E. 2d alias Coleman v . State 300, 119 N. E. 2d 424.

Appellant’s tendered instruction 5 was as follows: “The evidence of insanity defendants the at _ time of commission offense need not predominate his weight in going over that to show sanityIf there is your reasonable in doubt sanity mind of his at the time of the commission requires this offense, law find him guilty.” The substance of the instruction covered in the court’s instruction 37 as follows: presumes “The law that a man is mind of sound contrary. until there is some In evidence

prosecutions against law, for an ac- offense acquittal cused is entitled to an the evidence if engenders a reasonable as mental doubt to this charged alleged capacity offense at the time ¡been rebutting or have Evidence committed... tending not, preponderate sanity presumption of need to rebut acquittal, an the defendant entitle It will in of the accused. favor if, when considered in connection sufficient all of the case, raises introduced your doubt.” reasonable minds give obliged both instruc trial was not subject dealing There matter. tions with the same fore, give appellant’s tendered refusal re constitute 5 did not instruction number error. versible stated, judgment

For hereinabove reasons affirmed. JJ., Landis,

Arterburn, J., concur. Bobbitt and C. Jackson, J., opinion. dissents with

Dissenting Opinion. On, Jackson, the facts in instant case J.— herein, majority opinion shown the record erroneous, view, my following reasons. appeal on an

This is an from a conviction affidavit charging counts, kidnaping and the other in two one charging battery upon a child female assault gratify of sixteen with intent under sexual desires. upon which count affi-

The statute first 169, 1905, §358, p. is Acts ch. was based davit being §1, p. 477, §10-2901, Burns’ ch. Replacement.1 kidnaps, forcibly fraudulently Kidnaping. or or —Whoever state, any place decoys ar- this or or from within off carries having imprisons any person, such with the intention of or rests person be in state, away any place unless from carried within pursuance or of the United the of this state of laws conviction, and, kidnaping, im- guilty shall be States, of during prison

prisoned life. in the state upon the second count The statute . 1905, 169, §354, p. ch. is Acts

affidavit was based being §10-403, §1, 825, 277, p. Burns’ ch. Replacement.2 part, reads affidavit, pertinent one of the in Count as follows: MIDWINTER SHIPMAN “....that JERRY A.D., day July. the 31st of on at about or County of Marion in the State in and feloniously, Indiana, fraud- did then and there of ulently kidnap away, decoy fol- carry and namely:

lowing person ANN MOR- DELORES Indiana, place of GAN, said State from within St., Jersey vicinity'of 2215 N. New to-wit: In the Indianapolis, County in of City said in the of Indiana, feloni- of Marion ous State said thereby carry- and then and there intention away MORGAN, ing from were laws of the State States, ANN DELORES said place and acts said within said State said pursuance of done then and there Indiana the United of or of being----” there then and affidavit, pertinent part, reads two of Count as follows: or SHIPMAN on MIDWINTER JERRY July. and in day A. D. at 31st about of Indiana, County and in the of of Marion State feloniously unlawfully, and there did then rude, angry battery. in a insolent or 2. Assault —Whoever another, guilty

manner, unlawfully of an assault touches conviction, battery, fined not more than shall be which and on and one thousand may imprison- [$1,000], be added dollars Provided, months; exceeding county jail not six [6] in the ment any person re- offense in the commission of That whenever tear, remove, attempts unfastens, unbuttons, moves, tears, or of opposite clothing any any child of or unfasten unbutton any part body of thereof such caresses sex or fondles or under, intent with the or of 16 child the sexual who offending appetites gratify or desires excite, frighten, tend or person or, under circumstances which im- child, punishment frighten shall excite such period prison timé prisonment Indiana state in the years. year more than five [5] nor not less than one [1] rude, angry manner, purposely touch one DELORES and insolent MORGAN, ANN a female opposite of said MID- child WINTER SHIPMAN teen and that MENT sex of the JERRY and under the of six- age; (7) (16) years, of Seven to-wit: SHIP- said JERRY MIDWINTER in the then and there did [SHIPMAN] battery, and tear of assault and commission said clothing ANN remove of the DELORES said body said child of and did fondle MORGAN gratify the then there to with the and intent appetites JERRY of said sexual MIDWINTER or desires being SHIPMAN, there then and before discloses that record us excepting testi- appellee, most favorable to the Morgan mony Ann doctor, Delores child all of which appellant, and the statement greater detail importance, of its is set out account later, may follows: be summarized as July 31, 1959, p.m., 3:30 Delores started

On about neighborhood grocery. p.m. 4:00 to the After about home, her mother became on her failure to return Indianapolis reported Police that and alarmed missing. disappear- At the time of her Delores was blouse, wearing a white blue and ance she was shorts night gone panties. all and pair The child was p.m. after- 2:30 or 3:00 returned home next about subject In the had been noon. meantime she police authorities. search the mother and green appellant seen and The child were County dur- Chrysler places in Marion sedan several ing on in the afternoon time later the interim. Some appellant 31, 1959, drove his car evening July High- vicinity Road and of Post fence in into a required and a wrecker way stuck 52. The car was accompanied appellant get fence. Delores it out filling stations to several passers-by in their car and get car. The driver of the a wrecker to move the car, girl friend others identified the his green Chrysler sedan Delores as the driver of girl as the with him. little

The mother testified when Delores returned wearing any panties, her clothes home she was dirty shorts were torn. She also testi- were and her girl’s private parts fied that the were red. looking appellant,

When who was then un- through known, green car, located and who was mother, policemen Delores and one or more went apartment. by ap- to his The first statement made pellant girl i was Delores. I That little “[h] my had in car.” witness, Duncan,

The State’s Stuart Jackson was qualified practicing physician sworn and as a ad- practice Indiana, mitted to medicine in the State of presently County at an intern Marion Hos- General pital, Indianapolis, Indiana. He identified Delores Ann Morgan by the child who as was examined him on August 1, 1959, importance and in view of the portion testimony of this witness a of it set out verbatim as follows:

“Q. you jury tell Can now what your examination revealed ? brought receiving Well,

A. she was ward August Hospital of her General and I saw I her, in afternoon. examined did a receiving pelvic examination in the at ward only examination the On abnor- time. erythema hy- an un- malcy I an found was of the constitute membrane which menal hymenal membrane and usual redness to hymenal half a cen- membrane tear long 5:00 o’clock. timeter at hymenal Q. jury mem- where the to Describe found.” brane is (cid:127) a thin hymenal tissue that membrane A. The is closing opening found, the external almost vagina females. Q. Doctor, your Now, you, I whether will ask something into opinion inserted there was vagina opening so to cause this wound? something in- say was Well, serted. A. I can’t applied pressure had Certainly object by type membrane some tearing does re- usually membrane penetration. sult from ? And did a smear take vaginal smear, yes. A. I took Q. that? What the result sperm.” any A. I find did not part of this of the evidence On cross-examination follows, the condition with reference is as witness witness, described other another source

“A. It come from could have suppose, blow.' pressure I even blunt than Q. it? a fall have caused Could in- any type of A. A fall could almost cause jury.” Morgan, Delores Ann The of the witness given mostly in age, years was child of seven n leading questions propounded yes to and no answers briefly fol- as may State, summarized and going grocery store remembers lows: She green That going appellant car. ride with way to the stopped appellant the witness her take would grocery her that he and told store but got appellant into the The witness car there. grocery store,, took instead not., he stop he at did by' pre- country -to as ride in her ior a testified night slept vious witnesses^ She testified she that that appellant slept in. back of the car and seat the. response question front seat. In to the direct you anything happened know of that “[d]o night?”, question stated The witness was “[n]o.” , , witness, you asked also id ever ask him “[d] you you sleep home .take so could home?”. Her at what, “[y]es.” On-being reply was asked “I said, answered, she don’t he know what said.” Ip. response question to a asked witness “[d]id you cry go evening got home ever when it dark?”, replied she she not. did Later on asked, you you she was remember whether had “[d]o panties any time”, “yes”. on at and her answer was question happened then The was asked “[w]hat them, you do know?” They someplace. car

“A. was Q. get you, did off you How ber? those do remem- A. No.”

The witness on examination also direct was asked following questions,

“Q. anything You idon’t remember about that? Now, you me, Ann, tell could Delores whát happened, anything, your if had while panties off? ....

A. No.

Q. You don’t remember? No.”

A. objected defendant, appellant here, by counsel testimony taking prior her witness ground the stand on the the witness under incompetent testify, objec- ten and. during interroga- tions-were raised the -course also being questions leading suggestive. tion witness, James, The Gail testified on direct exam- ination, essence, in of in June on a school that day noon, up came her on at “[y]our street, her and mother took hold hand said walking you They pick up.” down me started told together her when she realized mother street anyone pick up, her she would send bit away man on hand and from him. ran objected of this witness was grounds defense, she on was counsel for testify. incompetent under ten and Hunter, a for the witness State testified that Oren City Indianapolis police for the office he August 1, 1959, Homicide on and that Bureau o’clock, capacity 9:00 on occasion around homicide he p.m. in the office took from statement appellant. identified such as State’s He ex- statement objection, said was in- No. 7. statement hibit Without reads as follows: troduced in evidence and Shipman Jerry Midwinter “Statement W/35 Indianapolis Jersey Indiana New St. of 1706 N. Sgt. Hunter and Detective Oren to Detective Howard Kramer partment, cide Indianapolis Police De- the Headquarters Homi- Police at August Office, 1,1959. Q. address your and ? What is name Shipman I live N. New Jerry A. at 1706 Jersey Indianapolis, Indiana. St. Q. [you] there? do Who live baby. MyA. wife

Q. you do work? Where Corp. Indianapolis, Indiana Shirley A.

Q. you ? of a car do drive kind What green Chrysler. I my A. drive wife’s Chrysler Q. green driving same Were Friday, July 31, 1959? yesterday afternoon A. sir. Yes

Q. charges you you understand have Do arrested for? been A. Yes.

Q. you your Will tell us in own what words happened yesterday July 31st 59 Yes, drinking A. I started Note Blue noon, Friday stayed Tavern about store of I about there hours, grocery I went two then bought gloves and some kind and some I and went to a left there Shell sta- fruit. I Whiskey to a tion. where on then went Store some- 16th I don’t know where I went St. from there.

Q. girl get your When did little into this car?

A. I don’t know.

Q. you girl your When did first notice this car?

A. In city by the com field out east creek somewhere.

Q. happened you after had this accident? What A. past Some man came and and woman took get us down wrecker.

Q. go got you you your Where did after car back on the road? up

A. I must have drove somewhere around north, got around railroad some tracks.

Q. happened then? What happened got I onto I back

A. don’t what know until Inn, At 16th Drive the little St. Pam’s girl me was still with then.

Q. you at ? did do Pam’s What Nothing.

A.

Q. you Did molest her?

IA. don’t remember.

Q. you Can read write? Yes,

A. a little.

Q. sign your own Will statement free will? Yes,

A. I will. wittness Oren Hunter [witness] /s/ Signed Jerry Shipman M. /s/ Jr.” D. Kramer Howard

This concluded the evidence and at the con- State’s discharge clusion thereof defendant moved for a pertinent part both counts. motion in reads as follows: lacking totally any The record evi- prosecuting witness, Ann Delores dence feloniously Morgan, fraudulently was either or away decoyed kidnapped. or The de- carried argue further record fendant would lacking

totally any as to intent . argue kidnap. The the rec- defendant would lacking totally any ord is evidence that Delores pursuance away Ann was of the the carried of the State of Indiana or laws laws' of covered, United The matter never States. by touched on the is State. There no evidence away, if child, show was carried in fact she was carried this contrary away to the of the laws States, of Indiana United or that State the or carrying. away occur, if did in fact it was such. pursuance not in of of done the the State laws being States, Indiana or the this ma- United allegation Kidnapping____” terial on the of statute relating discharge part motion of the That pertinent part in reads as as to count two follows: they an in did fail unlawful that “.... to prove evidence, touching no the There is no. child. of all, in at the child fact mo- was direct evidence statute, by lested, evidence that required no is is which There did in the defendant intend fact child, that the defendant the no evidence unbuttoned, touch removed, unfastened tore either the clothing would of the child. defendant - discharge grounds the for the move further prove completely venue. There is failed State by' in the which record the Court evidence no occurred as to act determine that could Assault the Intent, occur, did Battery if it County. Marion in fact Before did occur offense, jurisdiction over this can have Court State proving beyond a of the burden is under did occur offense fact doubt the reasonable lacking any totally record is county. The. evidence whatsoever. The further defendant' .moves, grounds discharge, if there was touching child, a and none, it- by made the there defendant opinion which defense is were, but if there is there no gratify was done with sexual the intent de- appetite.....” sires or I' unnecessary any deem ques- to. of. consider defendant, .. by or. tions defenses raised other than specifications ..the first . two defendant’s trial, motion for are, a.new That jury

“1. not verdict sustained - by n .. . sufficient evidence..- jury contrary That law” . verdict of proposition briefly I will discuss the. first ... evi- jury is not sustained sufficient

verdict the. dence. The evidence in criminal case must establish . guilt beyond all reasonable doubt. guilt suspicion, of

The mere sufficient sus conviction,, opportunity tain a nor is mere to commit sufficient, .a crime there must be substantial evi but probative dence of before conviction can value and, sustained,. scintilla of evidence .mere is not 658, 662, Thomas v. State Ind. enough. E. Baker 154 N. 2d v. State .

138 N. E. 2d 641 examining sufficiency In evidence to conviction, Supreme the a criminal Court has sustain law, duty, of a-matter to decide whether the as to cause reasonable men to be is sufficient evidence guilty beyond a lieve; defendant is reasonable . resolving reviewing, question.,the this court In do.ufjt.’ testimony credibility '.pasa of the to’ 'on the cari determining whether this test. of meets extent' 629, 632, (1958), 237 Ind. 147 N. E. v. State Riggs (1957), 509, 5, 579; Ind. Johnson 2d State 51 v. (1939), 444; Thompson Ind. v. State

141 N. E. 2d 165; Eberling The State 129, 137, E. 19 N. 2d v. 1023; People 121, E. (1894), N. 136 Ind. v. 259, 261, 160 494. N. E. 2d Oyola (1959), 6 Y. 2d N. charged assault count of affidavit The second It gratify battery desires. intent sexual beyond rea upon prove a was incumbent State intent, of the specific at the time sonable doubt the frighten touching gratify desires or to the sexual Markiton v. State provided the child as statute. (1957), 232, 236, 139 236 Ind. N. E. 2d showing given proof

From there no the evidence actually or appellant removed unfastened Morgan. clothing Ann Under these cir- of Delores showing cumstances there could be no namely, specified statute, with the in the done intent gratify or sexual desires frighten the child. may evil jury inferences of or draw not support no such con- there are facts

intent where pro- substantial evidence There clusion. must guilty proven be- accused value an bative before places be- This yond a doubt. reasonable purpose appeal, for not fore the Court determining it, purpose weighing for nor conflict, pur- is actual there but facts where deciding question law, a whether pose of support re- substantial evidence there is not facts essential to conviction. quired material enough to sustain conviction “It given credit, evidence, faith and when full the may tilla.” suspicion scin or amount warrant 628, 631, Sylvester 205 Ind. v. State 669; Baker 236 Ind. v. State 187 N. E. 641; (1950), 228 v. State 60, 138 E. 2d Stice N. 144, 149, 89 N. E. 2d Sullivan v. State 43, 47, 161 N. E. 265. (1928),

273 appellant’s specification motion On the second trial, jury namely, for a new the verdict of the law, contrary preceding and cita- comment clearly apply. The rule has been set out tions would §141, E., 8, 231, p. I. L. follows: Vol. tendency “Evidence has no to establish which, accused, guilt innocence of the or prejudice all, only if could effective serve at mislead, and inflame or excite the minds passions jury, admitted. should not be The evidence this case is insufficient jury contrary verdict of the therefore to law. (1955), 393, 398, 127 234 E. McCormick v. State Ind. N. 341; (1949), 726, 730, v. State 2d Carrier 89 502, N. E. 2d Trainer State Ind. v. 273; Chapman v. N. E. State 300, 303, E.N. Appellant’s motion a new trial should have granted, judgment been reversed and the cause remanded to the trial court for a new trial. Reported in 183 N. E. 2d 823.

Note. — of Indiana.

Wasson v. State 30,125. Rehearing 27, 1962. June Filed denied [No. September 1962.]

Case Details

Case Name: Shipman v. State

Court Name: Indiana Supreme Court

Date Published: Jun 26, 1962

Citation: 183 N.E.2d 823

Docket Number: 29,956

Court Abbreviation: Ind.