Caiger v. State

• Decision Date: 19 December 1900
• Citation: 58 N.E. 1036,155 Ind. 646
• Parties: CAIGER v. STATE.
• Court: Indiana Supreme Court

155 Ind. 646

58 N.E. 1036

CAIGER

v.STATE.

Supreme Court of Indiana.

Dec. 19, 1900.

Appeal from circuit court, Elkhart county; H. D. Wilson, Judge.

Jacob Caiger was convicted of petit larceny, and he appeals. Reversed.Henry C. Dodge and O. M. Conley, for appellant. W. L. Taylor, Atty. Gen., C. G. Sims, C. E. Frank, Merrill Moores, and C. C. Hadley, for the State.

MONKS, J.

An indictment in four counts was returned in the court below against appellant. The first count charged the offense of petit larceny; the second, grand larceny; the third, receiving stolen goods of the value of less than $25; and the fourth, receiving stolen goods of the value of $25. The trial of said cause resulted in a verdict of guilty of petit larceny as charged in the first count in the indictment, and over a motion for a new trial the court assessed the punishment, under the indeterminate sentence law, that appellant be confined in the Indiana Reformatory not less than one, nor more than three, years, etc. The action of the court in overruling the motion for a new trial is called in question by the assignment of errors. Among the instructions given by the court was the following, numbered 6: “The law applicable to these two charges is slightly different. If the appellant did steal, take, and carry away any of the property mentioned in this indictment, within the two years last past prior to the indictment, within the county of Elkhart and state of Indiana, then your verdict will be for the state, and the amount of the punishment will be fixed by the court under the statute.” The giving of this instruction was assigned as a cause for a new trial. In Hicks v. State, 150 Ind. 293, 50 N. E. 27, this court held that the statutes providing for punishment of felonies by imprisonment in the county jail or in the state prison, in the discretion of the court or jury trying the case, were not repealed by the indeterminate sentence law, nor by the Indiana reformatory act, as to the provision for imprisonment in the county jail, but that the court or jury trying such cases might, after said acts were passed, assess the punishment of imprisonment in the county jail, if the same was deemed adequate punishment for the offense. If not deemed adequate, however, then the finding must be made or verdict rendered under the indeterminate sentence law. The following cases are to the same effect: Zeilinski v. State, 150 Ind. 700, 50 N. E. 304;Bealer v. Same, 150 Ind. 390, 392, 393, 50...