Cox v. State

177 N.E. 898, 203 Ind. 544, 1931 Ind. LEXIS 63

• Court: Indiana Supreme Court
• Decided: October 13, 1931
• Docket: No. 26,045.
• Status: Published

Opinions

Martin, C. J.

Appellant was convicted and sentenced to life imprisonment in the Indiana State Prison under the 1929 kidnapping statute, which 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, and, on conviction, shall be imprisoned in the state prison during life.” Sec. 1, ch. 154, Acts 1929. §2426 Burns Supp. 1929.

Appellant entered a plea of not guilty and a special answer of insanity, to which a reply in general denial was filed. The trial was by a jury, which returned a verdict of guilty as charged. The alleged error relied upon for reversal is the overruling of appellant’s motion for a new trial, wherein he contends that the verdict is not sustained by sufficient evidence and is contrary to law.

The evidence of the State is as follows: On Sunday, November 23,1930, about 3:30 p. m. Gloria Jean Huffer, a seven-year-old girl, was playing with Julia May Aid-rich, nine years old, in the yard of the latter’s home in the city of Columbus. Appellant picked the Huffer child up in his arms in front of the house near the sidewalk. Immediately she began screaming and crying and kicking terribly to get loose. He forcibly put his hand over her mouth, leaving finger prints on her face and a big red place on her neck, and walked away straight and fast (some witnesses say he ran) with her down an alley. Immediately the Aldrich child screamed, and Mrs. Aid-rich, who looked out and saw appellant pass the window, called to her husband, who immediately started in pursuit. Appellant carried' the child 90 or 95 feet, then dropped her in the alley when Mr. Aldrich “hollowed” a,t him, and started in pursuit and then ran down the alley to where his automobile was parked. Several other, men, who testified, hearing the screams and the alarm joined in the pursuit, blockaded the path of his automobile, and captured appellant. A city fireman arrested him and he cursed and fought desperately with great strength until the police arrived and took him in custody. Appellant was somewhat under the influence of intoxicating liauor and there was vomit all over his car.

Three physicians appointed by the court to examine appellant reported that they had examined him physically, asked him various questions to determine his intellectual knowledge of his own acts and his general attitude toward certain conduct and as to his intelligence in general and that in their opinion he was, on November 23, 1930, and at the time of the trial, a person of sound mind.

The defense by its examination of these physicians and by several other of its own witnesses adduced testimony to the effect that the appellant was a moral or sexual pervert; that he had on different occasions accosted a number of little girls 6 or 7 years old on the street, displayed his privates, performed sexual acts in their presence and endeavored to persuade them to get into his automobile; that he had enticed a six-year-old girl by the offer of a nickel to go into a closet with him; and that previously he had been charged with the crime of rape on a nine-year-old girl. The appellant proved that he had stated to the examining physician that his sexual relations began when he was eight or nine years old with a little girl about that age and he continued that as he grew older. Two of the physicians testified that his sex ideal was a small girl; that this perversion resulted from his experience and mental picture he has carried from early life, and that in seeking to satisfy his desire with his sexual ideal, he might, as an adult, even go to the extent of attempting intercourse with a child of that age. The physicians testified, however, that such a perversion is not insanity and that “this man was not insane upon this particular subject, because he knows the quality of the act, and right and wrong. There is no question as to this man’s mental condition. He would be apt to do this thing again because they usually do in these cases.”

The appellant contends that the offense charged has not been made out by the evidence, for the reason that “the child was not carried away from any place.” He refers to the history of the offense of kidnapping, showing: (1) That under the common law in order to constitute the crime of kidnapping it was necessary that the kidnapped person be taken into another country (4 Blackstone Com. 219) ; (2) that under the early statutes- of this state kidnapping consisted of taking a person out of the state (See R. S. 1824 p. 142, R. S. 1831 p. 183, R. S. 1852 p. 440) ; (3) under a later statute of carrying a person away from his place of residence (R. S. 1881, §1915) ; (4) under a still later statute (Acts 1905 p. 661), and under the present statute (Acts 1929 p. 477)—carrying away “from any place within this state.” The history of the statute proves no point for appellant. There are no common-law crimes in Indiana, and the fact that former statutes required a taking out of the state or from a place of residence cannot serve to limit the construction of the term “from any place within this state.” A place is any portion of space regarded as distinct from all other space or appropriated to some definite object or use. 48 C. J. 1211. See Hammell v. State (1926), 198 Ind. 45, 152 N. E. 161. The child kidnapped by appellant was forcibly taken from the front yard of her playmate’s home, and was . carried off, violently resisting, down an alley toward appellant’s parked automobile. The prompt action of those who heard the cries of the abducted child prevented her further removal, but it is clear to us that her removal from the place where she was playing to a point more than 90 feet down the alley was sufficient to bring the act within the terms of the statute.

The appellant in his brief argues that the penalty inflicted by ch. 154, §1, Acts 1929, §2426 Burns Supp. 1929 is out of proportion to the nature of the offense and therefore in violation of §16, Art. 1, Constitution, §68 Burns 1926, but his assignment of error is not sufficient to present such constitutional question—that must be done by a motion to quash or in arrest of judgment. De La Tour v. State (1929) , 201 Ind. 14, 165 N. E. 753.

The appellant says: “It shocks all sense of justice that a young man should be sentenced to life imprisonment upon the facts revealed by the evidence in this case,” but we are pursuaded otherwise by the evidence which he himself introduced in a futile effort to prove himself insane, and which doubtless explained to the jury the motive as well as the gravity of his crime.

Judgment affirmed.

Myers, J., absent.