Hall v. State

• Decision Date: 10 January 1857
• Citation: 8 Ind. 399
• Parties: Hall v. The State
• Court: Indiana Supreme Court

8 Ind. 399

Hall v. The State

Supreme Court of Indiana

January 10, 1857

From the Decatur Circuit Court.

The judgment is reversed with costs. Cause remanded for another trial, and the keeper of the State prison notified to return the prisoner.

J Gavin and J. R. Coverdill, for appellant.

J. S Scobey and W. Cumback, for the State.

OPINION

Perkins J.

Indictment as follows, returned into Court by the grand jury of Decatur county:

"The State of Indiana, county of Decatur, ss. In the Decatur Circuit Court, at the April term, 1856. The grand jury of Decatur county, in the State of Indiana, upon their oath charge that John Spencer and Simon Hall, on the 28th day of November, A. D. 1855, at the county of Decatur in the State of Indiana, did feloniously steal, take, lead, and drive away one strawberry-roan mare of the value of 120 dollars, and one dapple-gray horse of the value of 400 dollars, then and there being found the personal chattels of William Myers. William Patterson, prosecuting attorney."

A motion to quash this indictment was overruled. No particular objection to it is pointed out. It does not contain the conclusion against the peace, etc.; but our present constitution does not require such conclusion, and the statute expressly dispenses with it. 2 R. S. p. 368. We think the indictment good. See English forms in Archbold, Chitty, etc.

An application for a change of venue was refused. This was matter of discretion in the Court below. Hubbard v. State, 7 Ind. 160; Spence v. State, 8 Blackf. 281.

A continuance of the cause to a subsequent term was asked for and denied. The testimony of an absent witness was wanted. The affidavit on which the motion for a continuance was based, contained all the necessary allegations to render it conformable to the statute on the subject, but was, we think, defective in regard to showing a probability of obtaining the testimony, if the continuance asked for was granted, and also in not showing sufficient diligence. The affidavit stated that the witness desired was somewhere in the State of Tennessee, but the affiant did not know in what county. It also stated that affiant had been in jail two months, awaiting the term of court at which he would be arraigned, and yet he does not appear to have written, or procured his counsel to do so, making inquiry as to the whereabouts of the desired witness, nor does he furnish any excuse for the failure. And if he could not, of his own recollection, recall his residence in two months, it would be hardly probable that he would be able to, in the next five or six. See Murphy v. State, 6 Ind. 490.

The Court instructed the jury as follows:

"If the property stolen, or a portion of it, was found, in the possession of the defendant in a short time after the larceny was perpetrated, it would be your duty to find the defendant guilty, unless he satisfies you, from the evidence, that he came by the horse honestly."

This instruction, as a general proposition, was incorrect. The Court should have told the jury that they might, instead of that they should, find the defendant guilty. See a correct instruction on this point in Engleman v. State, 2 Ind. 91, except as to the modification we now append to the second branch of the one under consideration, which is, that the defendant was not bound to satisfy the jury that he came honestly by the possession of the property alleged to be stolen, but only to go so far as to raise a reasonable doubt whether he had not so come by it; for, in criminal cases, the jury must acquit upon a reasonable doubt. The instruction, therefore, should not thus have divided the evidence and been given upon parts, but should have advised the jury that if, upon all the evidence in the cause, they had a reasonable doubt, etc. ^[1]. But notwithstanding this instruction was erroneous, the case will not be reversed for the error:

1. Because the Court, in another instruction, directed the jury correctly on the subject of reasonable doubts; and,

2. Because, as applicable to the facts in the case, the instruction given could not have prejudiced the defendant before the jury. There was no conflict in the evidence. It showed the larceny, the possession by the accused of a part of the property stolen (one of the horses), in a short time--fifteen or sixteen days--after the act, and no satisfactory explanation or account was given at the arrest, or attempted to be proved on the trial, though the party had had time enough to procure the proof, or to ascertain its existence, if it existed. The evidence left no space wherein the jury could locate a doubt.

The Court gave the following instruction:

"If you believe, from the evidence, that the defendant and John Spencer were together the day before the larceny was committed, and kept together up to 8 o'clock the night the horses were stolen, you have a right to infer that the larceny was committed by them jointly.

This instruction was objected to as authorizing a conviction against Spencer upon too slender evidence; and it was given and excepted to upon the assumption that as the indictment charged the defendant and Spencer jointly with the larceny, it was necessary to the conviction of the defendant, who was separately upon trial, to prove the larceny by both. If such was not the law, the instruction could not have injured the defendant who was on trial, as it was an instruction against Spencer only. Such was not the law.

"Where the indictment charges several with a joint offense, any one of them alone may be found guilty. But they cannot be found guilty separately of separate parts of the charge." 2 Russ. on Crimes, 711; 1 Chit. Cr. Law, 270; Bloomhuff v. State, 8 Blackf. 205; 1 Bish. Cr. Law, 541. On the proposition contained in the latter part of this quotation, the case of Farrell v. State, 3 Ind. 573, must have been decided, and can be upheld; though in such a case it has been decided that the reversal, where both were convicted, should extend only to the defendant who committed the separate offense later than the other. Reg. v. Dovey, 2 Eng. L. & Eq. 532. And see Everett v. State, 6 Ind. 495; Watson v. State, 7 Ind. 159.

The instructions to the jury from the Court were in writing and--as a practice, perhaps not very judicious--were taken to the consultation room by the jury. Two of those instructions were upon the necessity of proving a joint larceny as laid in the indictment, and were,...