Opinion
No. 27,884.
Filed November 23, 1943. Rehearing denied December 13, 1943.
1. SODOMY — Evidence — Sufficiency — Proof Sufficient to Sustain Conviction. — Evidence that defendant for several days in succession sought a rendezvous with a 17-year-old boy for immoral purposes, and that the boy, ostensibly yielding to his importunity, drove in an automobile to a secluded place, where defendant was interrupted and arrested by police who had been informed of his intentions, was sufficient to sustain a conviction of sodomy, the gist of such crime, as alleged, being the enticing, alluring or instigating. p. 26.
2. CRIMINAL LAW — Defenses — Entrapment — Conduct of Accused Not Inspired by Prosecuting Witness or Police — Defense Unavailable. — In a prosecution for sodomy, the gist of which crime, as alleged, was the enticing, alluring or instigating, wherein the evidence established that a young boy with whom defendant sought a rendezvous for immoral purposes, ostensibly yielding to defendant's importunity, drove in an automobile to a secluded place where defendant was interrupted and arrested by police, the defense of entrapment was unavailable since the criminal intent originated in defendant's own mind and his conduct in execution thereof was not inspired or induced by the boy or the police. p. 26.
From the Huntington Circuit Court; Burr Glenn, Judge.
Ernest A. Ditton was convicted of sodomy, and he appealed.
Affirmed.
C.W.H. Bangs, of Huntington, for appellant.
James A. Emmert, Attorney General, Frank Hamilton, First Assistant Attorney General, and Frank E. Coughlin, Deputy Attorney General, for the State.
Appellant, aged 27, was convicted of sodomy as defined in the second clause of § 10-4221, Burns' 1933, § 2603, Baldwin's 1934. He questions the 1, 2. sufficiency of the evidence to sustain the decision. For several days in succession he sought a rendezvous with a 17-year-old boy for immoral purposes. Ostensibly yielding to appellant's importunity, the boy, in his father's car, drove with appellant to a secluded place where he was interrupted and arrested by police who had been informed of his intentions. To do an act is one thing; to entice, allure or instigate the doing of such an act is entirely different. The gist of the crime here alleged was the enticing, alluring or instigating and was sufficiently established by the evidence. There was no entrapment. The criminal intent originated in appellant's own mind and his conduct in execution thereof was not inspired or induced by the boy or the police. 22 C.J.S. Criminal Law § 45 and cases cited in notes 91 and 93 on page 101.
Judgment affirmed.
NOTE. — Reported in 51 N.E.2d 356.