Dissenting Opinion.
Jackson, J.— On, the facts in the instant case as shown by the record herein, the majority opinion is erroneous, in my view, for the following reasons.
This is an appeal from a conviction on an affidavit in two counts, one charging kidnaping and the other charging assault and battery upon a female child under the age of sixteen years with intent to gratify sexual desires.
The statute upon which the first count of the affidavit was based is Acts 1905, ch. 169, §358, p. 584; 1929, ch. 154, §1, p. 477, being §10-2901, Burns’ 1956 Replacement.1
*263The . statute upon which the second count of the affidavit was based is Acts 1905, ch. 169, §354, p. 584; 1951, ch. 277, §1, p. 825, being §10-403, Burns’ 1956 Replacement.2
Count one of the affidavit, in pertinent part, reads as follows:
“....that JERRY MIDWINTER SHIPMAN on or about the 31st day of July. A.D., 1959 at and in the County of Marion in the State of Indiana, did then and there feloniously, fraudulently carry away, decoy and kidnap the following person namely: DELORES ANN MORGAN, from a place within said State of Indiana, to-wit: In the vicinity'of 2215 N. New Jersey St., in the City of Indianapolis, in said County of Marion in said State of Indiana, with the felonious intention then and there and thereby carrying the said DELORES ANN MORGAN, away from said place within said State and said acts were not then and there done in pursuance of the laws of the State of Indiana or of the United States, then and there being----”
Count two of the affidavit, in pertinent part, reads as follows:
JERRY MIDWINTER SHIPMAN on or about the 31st day of July. A. D. 1959, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously and *264purposely in a rude, insolent and angry manner, touch one DELORES ANN MORGAN, a female child of the opposite sex of the said JERRY MIDWINTER SHIPMAN and under the age of sixteen (16) years, to-wit: Seven (7) years of age; and that the said JERRY MIDWINTER SHIPMENT [SHIPMAN] did then and there in the commission of said assault and battery, tear and remove the clothing of the said DELORES ANN MORGAN and did fondle the body of said child with the intent then and there to gratify the sexual desires or appetites of the said JERRY MIDWINTER SHIPMAN, then and there being
The record before us discloses that the evidence most favorable to the appellee, excepting the testimony of the doctor, the child Delores Ann Morgan and the statement of the appellant, all of which on account of its importance, is set out in greater detail later, may be summarized as follows:
On July 31, 1959, about 3:30 p.m., Delores started to the neighborhood grocery. After about 4:00 p.m. on her failure to return home, her mother became alarmed and reported to the Indianapolis Police that Delores was missing. At the time of her disappearance she was wearing a white blouse, blue shorts and a pair of panties. The child was gone all night and returned home about 2:30 or 3:00 p.m. the next afternoon. In the meantime she had been the subject of a search by the mother and police authorities.
The child and appellant were seen in a green Chrysler sedan several places in Marion County during the interim. Some time later on in the afternoon or evening of July 31, 1959, appellant drove his car into a fence in the vicinity of Post Road and Highway 52. The car was stuck and required a wrecker to get it out of the fence. Delores accompanied appellant and passers-by in their car to several filling stations *265to get a wrecker to move the car. The driver of the car, his girl friend and others identified the appellant as the driver of the green Chrysler sedan and Delores as the little girl with him.
The mother testified that when Delores returned home she was not wearing any panties, her clothes were dirty and her shorts were torn. She also testified that the girl’s private parts were red.
When looking for appellant, who was then unknown, and who was located through the green car, the mother, Delores and one or more policemen went to his apartment. The first statement made by appellant was “[h] i Delores. That is the little girl I had in my car.”
The State’s witness, Stuart Jackson Duncan, was sworn and qualified as a practicing physician admitted to practice medicine in the State of Indiana, presently an intern at Marion County General Hospital, Indianapolis, Indiana. He identified Delores Ann Morgan as the child who was examined by him on August 1, 1959, and in view of the importance of the testimony of this witness a portion of it is set out verbatim as follows:
“Q. Can you tell the court and jury now what your examination revealed ?
A. Well, she was brought to the receiving ward of General Hospital on August 1 and I saw her in the afternoon. I examined her, did a pelvic examination in the receiving ward at that time. On examination the only abnor-malcy I found was an erythema of the hy-menal membrane which constitute an unusual redness to the hymenal membrane and a tear in the hymenal membrane half a centimeter long at 5:00 o’clock.
Q. Describe to the jury where the hymenal membrane is found.”
*266A. The hymenal membrane is a thin tissue that • is found, almost closing the external opening of the vagina in females.
Q. Now, I will ask you, Doctor, whether in your opinion there was something inserted into the opening of the vagina so as to cause this wound?
A. Well, I can’t say that something was inserted. Certainly pressure had to be applied by some type of object to the membrane and usually tearing of the membrane does result from penetration.
And did you take a smear ?
A. I took a vaginal smear, yes.
Q. What was the result of that?
A. I did not find any sperm.”
On cross-examination a part of the evidence of this witness is as follows, with reference to the condition described by the witness,
“A. It could have come from another source other than pressure I suppose, even a blunt blow.'
Q. Could a fall have caused it?
A. A fall could almost cause any type of injury.”
The evidence of the witness Delores Ann Morgan, a child of seven years of age, was given mostly in yes and no answers to leading ■ questions propounded by the State, and may be summarized briefly as follows: She remembers going to a grocery store and going for a ride with appellant in a green car. That appellant stopped the witness on the way to the grocery store and told her that he would take her there. The witness got into the car with appellant but he did not., stop at the grocery store,, instead he took her ior a ride in the country as testified -to by' pre*267vious witnesses^ She testified that that night she slept in. the back seat of the car and the. appellant slept in the front seat. In response to the direct question “[d]o you know of anything that happened that night?”, the witness stated “[n]o.” The question was also asked of the witness, , “[d] id you ever , ask him to .take you home so you could sleep at home?”. Her reply was “[y]es.” On-being asked what, the appellant said, she answered, “I don’t know what he said.” Ip. response to a question asked the witness “[d]id you ever cry to go home that evening when it got dark?”, she replied that she did not. Later on she was asked, “[d]o you remember whether you had panties on at any time”, and her answer was “yes”. The question was then asked “[w]hat happened to them, do you know?”
“A. They was in the car someplace.
Q. How did those get off you, do you remember?
A. No.”
The witness on direct examination was also asked the following questions,
“Q. You idon’t remember anything about that? Now, could you tell me, Delores Ann, whát happened, if anything, while you had your .... panties off?
A. No.
Q. You don’t remember?
A. No.”
The defendant, appellant here, by counsel objected to the testimony of this witness prior to her taking the stand on the ground that the witness was under ten years of age and. incompetent to testify, objections-were also raised during the -course of interrogation to the questions as being leading and suggestive.
*268The witness, Gail James, testified on direct examination, in essence, that in June of 1958, on a school day at noon, the appellant came up to her on the street, took hold of her hand and said “[y]our mother told me to pick you up.” They started walking down the street together when she realized that her mother would not send anyone to pick her up, she bit the man on the hand and ran away from him.
The evidence of this witness was objected to by counsel for the defense, on the grounds that she was under ten years of age and incompetent to testify.
Oren Hunter, a witness for the State testified that he was a police office for the City of Indianapolis in the Homicide Bureau on August 1, 1959, and that in that capacity on that occasion around 9:00 o’clock, p.m. in the homicide office he took a statement from appellant. He identified such statement as State’s exhibit No. 7. Without objection, said statement was introduced in evidence and reads as follows:
“Statement of Jerry Midwinter Shipman W/35 of 1706 N. New Jersey St. Indianapolis Indiana to Detective Sgt. Oren Hunter and Detective Howard Kramer of the Indianapolis Police Department, at Police Headquarters in the Homicide Office, on August 1,1959.
Q. What is your name and address ?
A. Jerry Shipman and I live at 1706 N. New Jersey St. Indianapolis, Indiana.
Q. Who do [you] live with there?
A. My wife and baby.
Q. Where do you work?
A. Shirley Corp. Indianapolis, Indiana
Q. What kind of a car do you drive ?
A. I drive my wife’s green Chrysler.
Q. Were you driving this same green Chrysler yesterday afternoon Friday, July 31, 1959?
A. Yes sir.
*269Q. Do you understand the charges that you have been arrested for?
A. Yes.
Q. Will you tell us in your own words what happened yesterday July 31st 59
A. Yes, I started drinking in the Blue Note Tavern Friday about noon, I stayed there about two hours, then I went to a grocery store and bought some gloves and some kind of fruit. I left there and went to a Shell station. I then went to a Whiskey Store somewhere on 16th St. I don’t know where I went from there.
Q. When did this little girl get into your car?
A. I don’t know.
Q. When did you first notice this girl in your car?
A. In the com field out east of the city by a creek somewhere.
Q. What happened after you had this accident?
A. Some man and woman came past and took us down to get a wrecker.
Q. Where did you go after you got your car back on the road?
A. I must have drove around somewhere up north, and got around some railroad tracks.
Q. What happened then?
A. I don’t know what happened until I got back onto 16th St. At Pam’s Drive Inn, the little girl was still with me then.
Q. What did you do at Pam’s ?
A. Nothing.
Q. Did you molest her?
A. I don’t remember.
Q. Can you read and write?
A. Yes, a little.
Q. Will you sign this statement of your own free will?
A. Yes, I will.
wittness [witness] /s/ Oren Hunter
Signed /s/ Jerry M. Shipman Howard D. Kramer Jr.”
*270This concluded the State’s evidence and at the conclusion thereof defendant moved for a discharge on both counts. The motion in pertinent part reads as follows:
The record is totally lacking of any evidence that the prosecuting witness, Delores Ann Morgan, was either feloniously or fraudulently carried away or decoyed or kidnapped. The defendant would further argue that the record is totally lacking as . to any evidence of intent to kidnap. The defendant would argue that the record is totally lacking any evidence that Delores Ann was carried away not in pursuance of the laws of the State of Indiana or the laws' of the United States. The matter was never covered, touched on by the State. There is no evidence to show this child, if in fact she was carried away, was carried away contrary to the laws of the State of Indiana or the United States, or that if such. carrying. away did in fact occur, it was not done in pursuance to the laws of the State of Indiana or the United States, this being a material allegation of the statute on Kidnapping____”
That part of the motion relating to the discharge as to count two in pertinent part reads as follows:
“.... in that they did fail to prove an unlawful touching of the child. There is no. evidence, no direct evidence at all, the child was in fact molested, which is required by statute, There is no evidence that the defendant did in fact intend to touch the child, no evidence that the defendant either removed, unbuttoned, unfastened or tore the clothing of the child. The defendant would further move for discharge on - the grounds the State completely failed to prove venue. There is no evidence in the record by' which the Court could determine that the act that occurred as to Assault and Battery with Intent, if it did occur, did occur in fact in Marion County. Before the Court can have jurisdiction over this offense, the State is under the burden of proving beyond a reasonable doubt the offense did occur in fact in this county. The. record is totally lacking any *271evidence whatsoever. The defendant' further .moves, as grounds for discharge, that if there was a touching made by the defendant of the child, and which the defense is of the opinion there was none, but if there were, there is no evidence that it- was done with the intent to gratify sexual desires or appetite.....”
I' deem it unnecessary to. consider any of. the questions .. or. defenses raised by the defendant, other than ..the . first two specifications of the defendant’s motion for a.new trial, which are,
“1. That the verdict of the jury is not sustained - ■.. by sufficient evidence..- .
2. That the verdict of the jury is . contrary to law”
... I will discuss briefly the. first proposition that the verdict of the. jury is not sustained by sufficient evidence. The evidence in a . criminal case must establish guilt beyond all reasonable doubt.
The mere suspicion, of guilt is not sufficient to sustain a conviction,, nor is mere opportunity to commit .a crime sufficient, but there must be substantial evidence of probative value before a conviction can be sustained,. and, a .mere scintilla of evidence is not enough. Thomas v. State (1958), 238 Ind. 658, 662, 154 N. E. 2d 503; Baker v. State (1956), 236 Ind. 55, 138 N. E. 2d 641.
In examining the sufficiency of the evidence to sustain a criminal conviction, the Supreme Court has the duty, as a-matter of law, to decide whether the evidence is sufficient to cause reasonable men to believe; that the defendant is guilty beyond a . reasonable do.ufjt.’ In resolving this question.,the reviewing, court cari '.pasa 'on the credibility of the testimony to’ the extent' of determining whether it meets this test. Riggs v. State (1958), 237 Ind. 629, 632, 147 N. E. 2d 579; Johnson v. State (1957), 236 Ind. 509, 515, *272141 N. E. 2d 444; Thompson v. State (1939), 215 Ind. 129, 137, 19 N. E. 2d 165; Eberling v. The State (1894), 136 Ind. 117, 121, 35 N. E. 1023; People v. Oyola (1959), 6 N. Y. 2d 259, 261, 160 N. E. 2d 494.
The second count of the affidavit charged assault and battery with intent to gratify sexual desires. It was incumbent upon the State to prove beyond a reasonable doubt the specific intent, at the time of the touching to gratify the sexual desires or to frighten the child as provided by statute. Markiton v. State (1957), 236 Ind. 232, 236, 139 N. E. 2d 440.
From the evidence given there is no proof showing that the appellant actually removed or unfastened the clothing of Delores Ann Morgan. Under these circumstances there could be no showing that this was done with the intent specified in the statute, namely, to gratify the sexual desires of the appellant or to frighten the child.
The court or jury may not draw inferences of evil intent where there are no facts to support such conclusion. There must be substantial evidence of probative value before an accused is proven guilty beyond a reasonable doubt. This places the evidence before the Court on appeal, not for the purpose of weighing it, nor for the purpose of determining the facts where there is actual conflict, but for the purpose of deciding as a question of law, whether or not there is substantial evidence in support of the required material facts essential to a conviction.
“It is not enough to sustain a conviction that the evidence, when given full faith and credit, may warrant a suspicion or amount to a scintilla.” Sylvester v. State (1933), 205 Ind. 628, 631, 187 N. E. 669; Baker v. State (1956), 236 Ind. 55, 60, 138 N. E. 2d 641; Stice v. State (1950), 228 Ind. 144, 149, 89 N. E. 2d 915; Sullivan v. State (1928), 200 Ind. 43, 47, 161 N. E. 265.
*273On the second specification of appellant’s motion for a new trial, namely, that the verdict of the jury is contrary to law, the preceding comment and citations would apply. The rule has been clearly set out in I. L. E., Vol. 8, §141, p. 231, as follows:
“Evidence which has no tendency to establish the guilt or innocence of the accused, and which, if effective at all, could serve only to prejudice or mislead, or excite the minds and inflame the passions of the jury, should not be admitted.
The evidence in this case is insufficient and the verdict of the jury is therefore contrary to law. McCormick v. State (1955), 234 Ind. 393, 398, 127 N. E. 2d 341; Carrier v. State (1949), 227 Ind. 726, 730, 89 N. E. 2d 74; Trainer v. State (1926), 198 Ind. 502, 511, 154 N. E. 273; Chapman v. State (1901), 157 Ind. 300, 303, 61 N. E. 670.
Appellant’s motion for a new trial should have been granted, the judgment reversed and the cause remanded to the trial court for a new trial.
Note. — Reported in 183 N. E. 2d 823.
. Kidnaping. — 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 during life.
. Assault and battery. — Whoever in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, and on conviction, shall be fined not more than one thousand dollars [$1,000], to which may be added imprisonment in the county jail not exceeding six [6] months; Provided, That whenever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton or unfasten any clothing of any child of the opposite sex or fondles or caresses the body of any part thereof of such child who is of the age of 16 years or under, with the intent to gratify the sexual desires or appetites of the offending person or, under circumstances which frighten, excite, or tend to frighten or excite such child, the punishment shall be imprisonment in the Indiana state prison for a period of timé of not less than one [1] year nor more than five [5] years.