Blaker v. State

• Decision Date: 26 January 1892
• Docket Number: 16,366
• Citation: 29 N.E. 1077,130 Ind. 203
• Parties: Blaker v. The State
• Court: Indiana Supreme Court

29 N.E. 1077

130 Ind. 203

Blaker v. The State

No. 16,366

Supreme Court of Indiana

January 26, 1892

From the Greene Circuit Court.

Judgment is reversed, and the circuit Court is directed to grant the appellant a new trial.

W. W Moffett and C. E. Davis, for appellant.

W. C Hultz, for the State.

OPINION

McBride, J.

The appellant was charged with the larceny of a horse. He was prosecuted on information and convicted. Two errors are assigned:

1st. That the court erred in overruling a motion to quash the information.

2d. That the court erred in overruling a motion for a new trial.

The court did not err in overruling the motion to quash. The only ground upon which the appellant argues that this motion should have been sustained is, that the information contains no statement that court was in session when it was filed, and does not refer to the affidavit filed as the source of the prosecutor's information. We find it unnecessary to pass upon either question thus suggested. Even if it were admitted that the information was defective by reason of the omission of these averments, or either of them, the question does not arise on a motion to quash.

Section 1759, R. S. 1881, prescribes the grounds upon which a motion to quash an indictment or an information may be based, and the objections urged to the information before us do not fall within its terms.

The first and second reasons upon which a new trial was asked are: 1st. That the verdict was contrary to law, and 2d. That the verdict was not sustained by sufficient evidence. Of these we will only say that in view of the uniform practice of this court, if no other reason for a new trial was assigned, we would not reverse the judgment.

The third and fourth reasons for a new trial are based on alleged errors in instructions given. The instructions given were thirty-two in number. The appellant insists that all except eleven, which were given on his motion, were erroneous. We will only notice three of them--No. 4, given by the court on its own motion, and Nos. 25 and 26, given on motion of the prosecuting attorney. No. 4 is as follows:

"You, gentlemen, in this case, are the judges of the law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves. Notwithstanding you have the legal right to disagree with the court as to what the law is, still you should weigh the instructions given you in the case as you weigh the evidence, and disregard neither without proper reason."

This instruction is fully sustained by Anderson v. State, 104 Ind. 467, 4 N.E. 63, and is correct on principle.

The Constitution gives to juries in criminal cases the right to determine the law as well as the facts. It does not, however, give to them the right to disregard the law. To aid them in correctly determining the law, it is made the duty of the court to instruct them. They have no more right in determining the law to disregard and ignore the court's instructions arbitrarily and without cause than to disregard and ignore the evidence, and determine the facts arbitrarily and without cause.

The twenty-fifth and twenty-sixth instructions are as follows:

"No. 25. If the defendant at one time had the stolen property or mare in his possession in this case, and afterward abandoned or left such mare, and does not account for or explain how he honestly came into possession of her, such facts, if they be proven beyond a reasonable doubt in this case, raise the presumption that the defendant stole said mare.

"No. 26. If you find in this case, beyond a reasonable doubt, that the defendant at one time had the stolen property or mare in his possession in this case, and left or abandoned her, and does not in some reasonable way explain to your satisfaction the possession of said mare, the presumption of guilt becomes conclusive."

The exclusive possession of stolen property soon after the larceny, if unexplained, raises a presumption that the person in whose possession it is found is guilty of the larceny. Gillett Crim. Law, section 553; Smathers v. State, 46 Ind. 447; Galvin v. State, 93 Ind. 550; Turbeville v. State, 42 Ind. 490; Hall v. State, 8 Ind. 439; Engleman v. State, 2 Ind. 91; Jones v. State, 49 Ind. 549.

The presumption thus raised is a presumption, or rather an inference, of fact, and not a legal presumption. Smith v. State, 58 Ind. 340.

That is, the courts can not say, because of such possession and want of explanation, that as a question of law the accused must be deemed guilty, but the jury are authorized to consider such evidence as tending to show guilt, and, the larceny being shown, the circumstances connected with such possession and want of explanation may be sufficient to make the question of guilt, as a question of fact, conclusive and sufficient in and of themselves to justify conviction.

The length of time that must elapse after the larceny of goods before their possession should cease to be considered as tending, with other facts, to show guilt, is, as a rule purely a question of fact for the jury. Naturally, the shorter the...