8 N.E. 14 (Ind. 1886), 13,088, Bird v. The State

Docket Nº:13,088
Citation:8 N.E. 14, 107 Ind. 154
Opinion Judge:Zollars, J.
Party Name:Bird v. The State
Attorney:W. H. Thompson, W. B. Herod and J. West, for appellant. F. T. Hord, Attorney General, and W. B. Hord, for the State.
Case Date:June 22, 1886
Court:Supreme Court of Indiana
 
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8 N.E. 14 (Ind. 1886)

107 Ind. 154

Bird

v.

The State

No. 13,088

Supreme Court of Indiana

June 22, 1886

From the Montgomery Circuit Court.

The judgment is reversed, with instructions to the court to sustain appellant's motion for a new trial.

W. H. Thompson, W. B. Herod and J. West, for appellant.

F. T. Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Zollars, J.

Appellant was convicted upon a charge of [107 Ind. 155] grand larceny. He has appealed and brought up the case upon the instructions without the evidence.

Instruction 3 1/2 was as follows: "To convict the defendant the State must prove that the property, or some part thereof, described in the indictment, was taken by the defendant; that at the time it was taken it was the property of William McIvor; that it was taken in Montgomery county, Indiana, and within two years next preceding the finding of the indictment, which was October 9th, 1885."

It is contended that by this instruction the court assumed to give to the jury all of the facts necessary to be found in order to justify a conviction, and that it is defective in that there was an omission to state that the taking must have been felonious, and that the property taken must have been of some value.

When it is undertaken to state in an instruction all of the elements of the offence necessary to a conviction, and an essential element is omitted, the instruction will be fatally defective. Hart v. State, 57 Ind. 102; Hunter v. State, 101 Ind. 241.

We do not think, however, that the instruction is fairly open to the objections urged against it. It was stated in the instruction, that to convict the defendant the State must prove certain things, but it was not stated that the proof of those facts would alone justify a conviction, without reference to other facts and other instructions by the court.

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In the third charge, the jury were properly instructed that the taking must have been felonious, and as to the necessary value of the property taken to constitute grand larceny.

In the fourth charge, the jury were instructed that they were the judges both of the law and of the evidence; that the instructions by the court were advisory merely, and that if they differed with the court as to the law, they might follow their own convictions, and disregard the...

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