Achor, J.
—
A verdict of guilty was returned on both counts and appellant was sentenced to life imprisonment on count one, and for one to five years on count two.
Appellant here argues the following grounds as cause for reversal. (1) That neither count is supported [249]*249by sufficient evidence. (2) That the court erred in allowing certain questions to be answered pertaining to the presence of Vodka bottles in appellant’s automobile which subject was raised for the first time on re-direct examination. (3) That trial court erred in allowing a physician to testify as to the presence of pain connected with the injuries sustained by the child, on the ground that such a question was immaterial and served only to inflame and prejudice the jury. (4) That the court erred in allowing a leading question to be answered over the objection of the appellant. (5) That the court erred in allowing a child of seven, and a child of nine and a half years of age to testify, on the ground that neither of said children were qualified witnesses. (6) That the court erred in allowing a witness to testify as to a previous similar conduct of the appellant, and, (7) that the court erred in refusing two of appellant’s tendered instructions.
We will consider the contentions raised by appellant in the order above presented. Was the evidence sufficient to sustain the charge of kidnaping? Appellant argues first that it is not shown that he either forcibly carried away the person with criminal intent, or that the person “carried off” was taken without her consent. Neither of the above described acts are necessary elements of the crime of kidnaping. The statutes provides:
“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 kidnaping, and, on conviction, shall be imprisoned in the state prison [250]*250during life.” Acts. 1929, ch.. 154, § 1, p. 477 [§ 10-2901, Burns’ 1956 Repl.]. [Emphasis added.]
On July 31, 1959, appellant had been drinking, beer at a tavern.' He then left in his wife’s 1951 Chrysler, and subsequently went to buy some whiskey. Delores Ann Morgan was a girl seven years old. Her mother had sent her to the grocery about four houses south from their residence- located at 2215 North New Jersey! Indianapolis, Marion- County, Indiana. At about 3:30 P.M. appellant came by in the automobile and offered to take her to the grocery. She consented and got into the automobile. However, contrary to his representation, appellant drove past the grocery, although it was pointed out to him. Instead, he drove out in the country with the child. The child asked him to take her home, but he did not do so. Instead, he drove ábout Marion County at various places with the child, keeping her with him in the car over night. During this time he had two minor collisions. On both occasions he appeared to have been drinking. On one occasion he stated that he was wanted by the police. In the afternoon of the second day, he returned the child to the vicinity of her home.
The- facts above stated were sufficient to sustain the conviction for kidnaping. Contrary to the contention of appellant, it seems obvious that the consent which a seven year old child gives to an adult who decoys her away from her present place and environment by fraudulent representation does not negate the fact of kidnaping. In fact, the statute is expressly designed to penalize a person who. “fraudulently carries off or decoys from any place” a child under the circumstances here preentecL §10-2901, supra. . - . .
[251]*251We next consider whether the evidence. is • sufficient to sustain the conviction as to Count 2 of the indictment. Upon this issue, appellant argues that it was not shown that he had the intent to gratify his sexual desires or to frighten the child.
What are the facts as bearing upon this issue? Appellant, a man of 35 years of age, enticed a seven year old child, who was a stranger to him, into his car and kept her with him over night and through the next day, over her protestation, returning her to the vicinity of her home the next afternoon with her clothes dirty and torn, her panties removed and her private organs injured, including a partial rupture of her hymenal membrane. Admittedly, there is no direct evidence that the child was molested by the appellant. However, there is evidence that the abuse to; her person occurred while she was in the illicit control and custody of the appellant, and there is no evidence that the child committed the acts upon herself which caused the injury.
Thus the evidence against the appellant on Count 2 of the affidavit is circumstantial. However, this fact does not prevent it being sufficient to sustain a conviction. In the case of McCoy v. State (1958), 237 Ind. 654, 660, 148 N. E. 2d 190, 193, it was stated as follows:
“[A] conviction may be sustained wholly on circumstantial evidence, if there is some substantial evidence of probative value from which a reasonable inference, that establishes the guilt of appellants beyond a reasonable doubt, may be drawn. Todd v. State (1951), 230 Ind. 85, 90, 101 N. E. 2d 922; Myers v. State (1954), 233 Ind. 66, 67, 116 N. E. 2d 839.
“The true test of circumstantial evidence is whether ‘in the order of natural causes and effects, the' facts' proved can be explained consist[252]*252ently with the innocence of the prisoner.’ Beavers v. The State (1887), 58 Ind. 530, 537.” See also: Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445.
Furthermore, in support of this count of the affidavit, there is evidence that on a former occasion the appellant had spoken to a girl who was then eight years of age while she was on her way to school, and told her that “Your mother told me to pick you up.” He then took her by the hand and walked away with her for several blocks when she realized that something was wrong. She bit him on the hand to free herself and ran from him.
In our opinion, the facts in evidence are sufficient to convince men of reasonable minds as to the guilt of the accused beyond a reasonable doubt. They present a circumstance which, from ordinary experience, is much more consistent with the probability of guilt, not with the improbability of such guilt. Therefore, the evidence, although circumstantial, is sufficient to sustain the fact of intent as an element of the crime charged.
Appellant also contends that the judgment is not sustained by sufficient evidence, because the state failed to prove the venue of the action. The evidence upon, this issue discloses that appellant took the child in question from a street near her home in Indianapolis, Marion County, and returned her the next day to the same area. Several witnesses testified that in the interim 24 hour period appellant was seen with the girl in his car at . various parts in Marion County.
In the case of
Free access — add to your briefcase to read the full text and ask questions with AI
Achor, J.
—
A verdict of guilty was returned on both counts and appellant was sentenced to life imprisonment on count one, and for one to five years on count two.
Appellant here argues the following grounds as cause for reversal. (1) That neither count is supported [249]*249by sufficient evidence. (2) That the court erred in allowing certain questions to be answered pertaining to the presence of Vodka bottles in appellant’s automobile which subject was raised for the first time on re-direct examination. (3) That trial court erred in allowing a physician to testify as to the presence of pain connected with the injuries sustained by the child, on the ground that such a question was immaterial and served only to inflame and prejudice the jury. (4) That the court erred in allowing a leading question to be answered over the objection of the appellant. (5) That the court erred in allowing a child of seven, and a child of nine and a half years of age to testify, on the ground that neither of said children were qualified witnesses. (6) That the court erred in allowing a witness to testify as to a previous similar conduct of the appellant, and, (7) that the court erred in refusing two of appellant’s tendered instructions.
We will consider the contentions raised by appellant in the order above presented. Was the evidence sufficient to sustain the charge of kidnaping? Appellant argues first that it is not shown that he either forcibly carried away the person with criminal intent, or that the person “carried off” was taken without her consent. Neither of the above described acts are necessary elements of the crime of kidnaping. The statutes provides:
“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 kidnaping, and, on conviction, shall be imprisoned in the state prison [250]*250during life.” Acts. 1929, ch.. 154, § 1, p. 477 [§ 10-2901, Burns’ 1956 Repl.]. [Emphasis added.]
On July 31, 1959, appellant had been drinking, beer at a tavern.' He then left in his wife’s 1951 Chrysler, and subsequently went to buy some whiskey. Delores Ann Morgan was a girl seven years old. Her mother had sent her to the grocery about four houses south from their residence- located at 2215 North New Jersey! Indianapolis, Marion- County, Indiana. At about 3:30 P.M. appellant came by in the automobile and offered to take her to the grocery. She consented and got into the automobile. However, contrary to his representation, appellant drove past the grocery, although it was pointed out to him. Instead, he drove out in the country with the child. The child asked him to take her home, but he did not do so. Instead, he drove ábout Marion County at various places with the child, keeping her with him in the car over night. During this time he had two minor collisions. On both occasions he appeared to have been drinking. On one occasion he stated that he was wanted by the police. In the afternoon of the second day, he returned the child to the vicinity of her home.
The- facts above stated were sufficient to sustain the conviction for kidnaping. Contrary to the contention of appellant, it seems obvious that the consent which a seven year old child gives to an adult who decoys her away from her present place and environment by fraudulent representation does not negate the fact of kidnaping. In fact, the statute is expressly designed to penalize a person who. “fraudulently carries off or decoys from any place” a child under the circumstances here preentecL §10-2901, supra. . - . .
[251]*251We next consider whether the evidence. is • sufficient to sustain the conviction as to Count 2 of the indictment. Upon this issue, appellant argues that it was not shown that he had the intent to gratify his sexual desires or to frighten the child.
What are the facts as bearing upon this issue? Appellant, a man of 35 years of age, enticed a seven year old child, who was a stranger to him, into his car and kept her with him over night and through the next day, over her protestation, returning her to the vicinity of her home the next afternoon with her clothes dirty and torn, her panties removed and her private organs injured, including a partial rupture of her hymenal membrane. Admittedly, there is no direct evidence that the child was molested by the appellant. However, there is evidence that the abuse to; her person occurred while she was in the illicit control and custody of the appellant, and there is no evidence that the child committed the acts upon herself which caused the injury.
Thus the evidence against the appellant on Count 2 of the affidavit is circumstantial. However, this fact does not prevent it being sufficient to sustain a conviction. In the case of McCoy v. State (1958), 237 Ind. 654, 660, 148 N. E. 2d 190, 193, it was stated as follows:
“[A] conviction may be sustained wholly on circumstantial evidence, if there is some substantial evidence of probative value from which a reasonable inference, that establishes the guilt of appellants beyond a reasonable doubt, may be drawn. Todd v. State (1951), 230 Ind. 85, 90, 101 N. E. 2d 922; Myers v. State (1954), 233 Ind. 66, 67, 116 N. E. 2d 839.
“The true test of circumstantial evidence is whether ‘in the order of natural causes and effects, the' facts' proved can be explained consist[252]*252ently with the innocence of the prisoner.’ Beavers v. The State (1887), 58 Ind. 530, 537.” See also: Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445.
Furthermore, in support of this count of the affidavit, there is evidence that on a former occasion the appellant had spoken to a girl who was then eight years of age while she was on her way to school, and told her that “Your mother told me to pick you up.” He then took her by the hand and walked away with her for several blocks when she realized that something was wrong. She bit him on the hand to free herself and ran from him.
In our opinion, the facts in evidence are sufficient to convince men of reasonable minds as to the guilt of the accused beyond a reasonable doubt. They present a circumstance which, from ordinary experience, is much more consistent with the probability of guilt, not with the improbability of such guilt. Therefore, the evidence, although circumstantial, is sufficient to sustain the fact of intent as an element of the crime charged.
Appellant also contends that the judgment is not sustained by sufficient evidence, because the state failed to prove the venue of the action. The evidence upon, this issue discloses that appellant took the child in question from a street near her home in Indianapolis, Marion County, and returned her the next day to the same area. Several witnesses testified that in the interim 24 hour period appellant was seen with the girl in his car at . various parts in Marion County.
In the case of Watts v. State (1950), 229 Ind. 80, 89, 95 N. E. 2d 570, 574, it was stated as follows:
[253]*253“No more direct evidence is required for the proof of venue than is required for the proof of any of the other matters required for conviction, and may be established by inference. Davis v. State (1925), 196 Ind. 213, 147 N. E. 766”
Under the above stated rule of law there was more than sufficient evidence to prove the venue in the case at bar.
Appellant also contends that the evidence was insufficient to sustain the judgment on the ground that under his plea of insanity, the state failed to sustain its burden of proof as to his sanity. We recognize the fact that the burden of proving sanity, when the issue is raised, is upon the state. We further acknowledge the fact that testimony of the two psychiatrists who examined the appellant conflict upon the issue of insanity. However, it was the responsibility of the jury to consider the issue of insanity upon all the evidence which was before it upon that subject. The rule is well established that in event of conflict of evidence, this court will not weigh the evidence on appeal. Matthews v. State (1959), 239 Ind. 252, 156 N. E. 2d 387; Coffer v. State (1959), 239 Ind. 22, 154 N. E. 2d 371; Leslie v. State (1959), 239 Ind. 462, 158 N. E. 2d 654; Lenovich v. State (1958), 238 Ind. 359, 150 N. E. 2d 884; Mack v. State (1957), 236 Ind. 468, 139 N. E. 2d 434.
We next consider appellant’s contention that the trial court erred in admitting certain testimony on re-direct examination. The particular witness had testified on direct examination that on the evening of July 31 he had encountered the appellant with his car astraddle a fence at the side of the road, at which time he observed the child in the car with the appellant. He testified that he observed that the appel[254]*254lant had been drinking. On cross-examination, the appellant’s counsel interrogated the witness extensively on the subject as- to what he saw and smelled. The witness testified that he smelled the appellant’s breath, and saw four or five beer cans on the floor of his car. Thereafter, on re-direct examination the state asked the question: “Did you see any Vodka bottles thereabouts?” Attorney for appellant objected to the interrogation on the ground that the subject was not mentioned in either direct or cross-examination. The court overruled the objection, and it is this ruling which appellant here asserts as error. Furthermore, it is to be’ noted that the witness in response to the question answered, “No, I never saw nothing but beer cans.” Then on re-cross examination counsel for appellant pursued the issue by asking the question: “Mr. Copple, could there' have been Vodka bottle in the car and you not seen' it?” to which the witness replied, “There could have been, yes, sir.”
However, appellant’s contention is not well taken. First, because it appears that the interrogation complained of by appellant was related to the intoxicated condition of the appellant, and that this subject matter was touched upon in both the. direct and . cross-examinations of the witness. If so, the testimony Was properly admitted. Further, even though the court may have permitted the question and answer out of order, it does not appear that appellant was-in anywise prejudiced thereby, first, because of the negative answer thereto, and secondly, because appellant was permitted and did pursue' the same subject matter on ré-cross examination, which .was allegedly out of order on. re-direct examination.
[255]*255[254]*254The scope of re-direct examination is within the sound discretion of the trial court, and although he [255]*255permits evidence to be introduced under such re-direct examination for the first time, this fact will not, under ordinary circumstances, constitute reversible error unless the opposite party is prevented from further interrogating the witness on the subject matter and of presenting other evidence in contradiction of the testimony adduced if it is prejudicial to his position in the case. These circumstances do not appear in this case. Brazil Block Coal Co. v. Gibson (1903), 160 Ind. 319, 326 66 N. K 882, 885; Wells v. State (1959), 239 Ind. 415, 425, 426; 158 N. E. 2d 256, 260, 261-262.
The appellant urges that the trial court erred in overruling its objection to certain evidence given by a doctor, as a state’s witness, to the effect that the amount of pain usually present with a rupture of the hymenal membrane “might be dependent upon the age of the individual.” The objection made was: “It is an immaterial question.”
An objection that a question illicits testimony which is immaterial is not sufficient to raise any issue on appeal. Brown v. Owen (1884), 94 Ind. 31.
Furthermore, it is to be noted that the subject matter was material to the question as to whether or not the injury suffered by the child may have been self-inflicted. It is not probable that a child would inflict such injury upon herself which involved “a certain amount of pain,” especially in the presence of a stranger.
Next, appellant argues that it was error for the trial court to allow a leading question to be answered over appellant’s objection. The question, objection, ruling of the court, and the answer are as follows:
[256]*256“Q. Then did you proceed to put the handcuffs on the defendant?
MR. MARTZ: The prosecutor is leading the witness again. He can ask the question differently.
THE COURT: Every leading question is not objectionable. This is proper and will save some time____Show the defendant’s objection overruled.
A. Not to my recollection.”
Whether a leading question is to be allowed is a decision largely within the discretion of the trial court. On appeal it must be shown that there was an abuse of discretion. Webster v. State (1934), 206 Ind. 431, 190 N. E. 52; Seymour Water Co. v. Lebline (1924), 195 Ind. 481, 144 N. E. 30. Also, to constitute reversible error, it must appear that appellant was substantially injured by the answer. Hilton v. Mason (1883), 92 Ind. 157; Weik v. Pugh (1884), 92 Ind. 382. It does not appear that the court abused its discretion in permitting the state to ask the question to which appellant objects, nor does it appear that appellant was in anywise injured by the answer.
Next we give consideration to appellant’s contention that the trial court committed reversible error in allowing Delores Ann Morgan, a child of seven years of age, and Gail Frances James, a child of nine and a half, to testify.
The statute relating to testimony of children, under ten years of age, is as follows:
“The following persons shall not be competent witnesses:
“Second. Children under ten [10] years of age, unless it appears that they understand the nature and obligation of an oath.” Acts 1881 (Spec. [257]*257Sess.), ch. 38, § 275, p. 240 [§ 2-1714, Burns’ 1946 Repl.].
The record discloses that the trial court examined both witnesses at length before ruling on their competency.
Delores Ann Morgan, when examined by the court, stated, in part, as follows:
“Q. Do you tell lies ?
A. No.
Q. Why don’t you tell lies? Don’t get scared. We are just talking to you. No one is going to hurt you. Do you know why you don’t tell lies?
A. No.
Q. Do you know you are supposed to tell the truth?
A. Yes.
Q. And you are not supposed to tell lies ?
A. No.
Q. Would you ever tell a lie?
A. No.
Q. Do you know that when you are asked to tell something in court that you are asked to tell just the truth and not lie a bit, you know that?
A. Yes.
Q. Do you ever promise to do anything? Do you know what a promise is ?
A. Yes.
Q. ... Do you know what it means to keep your promise? Don’t make a promise and not keep it, do you know that? Do you always keep your promises ?
A. Uhuh.
[258]*258Q. Would you promise me something?
A. Uhuh.
Q. Would you promise me to tell the truth today?
A. Yes.
Q. And you would not tell a lie?
A. No.
Q. And you would keep your promise to me?
A. Yes.”
It would appear from the above colloquy that, although in earlier interrogation, the witness indicated that she did not know what an oath' was, she did knOw what it meant to tell the truth and not to lie, which she agreed to do. [Her lack of knowledge regarding the meaning of the word “oath” can be attributed to the vocabulary of an ordinary seven-year old child.] Her answer," taken as a whole, indicated that she knew the difference between telling the truth and lying. Under the above circumstances we cannot say that the court erred in permitting the witness to testify.
Gail Frances James, when examined by the court, stated in part as follows:
“G. Do you know what it means to tell the truth?
A. 'Yes.
Q. Do you tell the truth?
A. Yes.
Q. You know I have to — you have to hold up your right hand and promise to tell the truth? Anything you say here today has to be the truth. You know that?
A. Yes. ■
;Q. You will be bad if you don’t, won’t you?
A.'Yes. •
Q. Will you promise to do that, if I ask you to promise you will tell the truth ?
[259]*259A. Uhuh.
Q. Did your Mommy tell you anything to do?
A. She said to tell the truth.”
Whether a person under the age of ten shall be allowed to testify is a decision in the discretion of the trial court, and it requires a showing of manifest abuse of such discretion to require reversal. Martin v. State (1959), 239 Ind. 174, 154 N. E. 2d 714; Butler v. State (1951), 229 Ind. 241, 97 N. E. 2d 492; Tyreel v. State (1912), 177 Ind. 14, 97 N.E. 14.
We cannot say that the record before us shows an abuse of discretion on the part of the trial court in allowing the two witnesses to testify.
Appellant next urges that it wás error to allow Gail Frances. James to answer questions pertaining to his conduct prior to the act charged, over objection, for the reason that said witness was a surprise witness, and for the further reason that evidence of other misconduct can be admitted only after the crime charged is clearly proved. Appellant cites no authority for the proposition that the evidence should have, been excluded for the reason that the witness was a surprise witness. If the defendant does not file a..motion asking the state to set out its witnesses, then in the absence of such a motion, the effect of the failure of the prosecuting attorney to endorse the names of the material witnesses on the affidavit as provided by Acts 1905, ch. 169, §119, p. 584 [§9-909, Burns’ 1956 Repl.] is merely to prevent the state from asking for a continuance for ..their absence. Short v. State (1878), 63 Ind. 376; Siberry v. State (1893), 133 Ind. 677, 33 N. E. 681; Ruffenbarger v. State (1921), 190 Ind. 616, 131 N. E. 514.
[260]*260Furthermore, with respect to the admissibility of this testimony, the rule is well settled that when insanity is an issue, evidence of relevant conduct of the person charged with the crime is admissible. Kiefer v. State (1960), 241 Ind. 176, 169 N. E. 2d 723; Kallas v. State (1949), 227 Ind. 103, 83 N. E. 2d 769, Cert. Den. 336 U. S. 940, 69 S. Ct. 744, 93 L. Ed. 1098.
Finally, appellant urges that the trial court erred in refusing his tendered instructions 2 and 5.
Appellant’s tendered instruction 2 was as follows:
“The defendant is not to be held responsible for the specific intent if he was to drunk for a conscious exercise of the will to the particular end, or, in other words, too drunk to intend the intent and did not entertain it in fact.”
As noted by the appellant, the refusal of the trial court to give the above quoted instruction was held to be error in the case of Eastin v. State (1954), 233 Ind. 101, 117 N. E. 2d 124, although the court criticized the form of instruction. However, the Eastin case is distinguishable from the case at bar, in that the trial court apparently did not give an instruction to the effect that intoxication of the defendant may be considered by the jury in determining the question of intent. In the case at bar, the court in another instruction correctly instructed the jury in the matter of intoxication and intent. Defendant’s tendered instruction 1 given as court’s instruction 40, is as follows:
“In order to convict the defendant under the statute for Kidnapping or Assault and Battery with Intent to Gratify Sexual Desires, it is necessary to satisfy the jury beyond a reasonable doubt that the defendant entertained the specific intent charged and performed the acts to [261]*261accomplish the specific purpose. Mere drunkenness does not excuse the offense but it may produce a state of mind which incapacitates the party from forming or entertaining a specific intent as the mental condition is such that a specific intent cannot be formed. Whether this condition is caused by drunkeness or otherwise, a party cannot be said to have committed an offense when a necessary element of which is that it be done with a specific intent. If the jury finds that this specific intent is missing from this defendants mind then the defendant should not be found guilty of Kidnapping or Assault and Battery with Intent to Grat-tify Sexual Desires.”
The above quoted instruction as given meets the requirements of Eastin v. State, supra, and also Booher v. State (1901), 156 Ind. 435, 60 N. E. 156.
Tendered instructions which are properly covered by other given instructions are properly refused. Lenovich v. State (1958), 238 Ind. 359, 150 N. E. 2d 884 [supra]; Flowers v. State (1956), 236 Ind. 151, 139 N. E. 2d 185; Stokes, alias Coleman v. State (1954), 233 Ind. 300, 119 N. E. 2d 424.
Appellant’s tendered instruction 5 was as follows:
_ “The evidence of defendants insanity at the time of the commission of this offense need not predominate in weight over that going to show his sanityIf there is a reasonable doubt in your mind of his sanity at the time of the commission of this offense, the law requires that you find him not guilty.”
The substance of the instruction was covered in the court’s instruction 37 as follows:
“The law presumes that a man is of sound mind until there is some evidence to the contrary. In prosecutions for offense against the law, an accused is entitled to an acquittal if the evidence engenders a reasonable doubt as to this mental [262]*262capacity at the time the alleged offense is charged to have ¡been committed... Evidence rebutting or tending to rebut the presumption of sanity need not, to entitle the defendant to an acquittal, preponderate in favor of the accused. It will be sufficient if, when considered in connection with all of the evidence introduced in case, it raises in your minds a reasonable doubt.”
The trial court was not obliged to give both instructions dealing with the same subject matter. Therefore, the refusal to give appellant’s tendered instruction number 5 did not constitute reversible error. For the reasons hereinabove stated, judgment is affirmed.
Arterburn, C. J., Bobbitt and Landis, JJ., concur.
Jackson, J., dissents with opinion.
This case was assigned to the writer on January..19, 1962.