Chizum v. State

• Decision Date: 21 April 1932
• Docket Number: No. 26069.,26069.
• Parties: CHIZUM v. STATE.
• Court: Indiana Supreme Court

203 Ind. 450

180 N.E. 674

CHIZUM

v.STATE.

No. 26069.

Supreme Court of Indiana.

April 21, 1932.

Appeal from Fountain Circuit Court; O. B. Ratcliff, Judge.

Earl Chizum was convicted of automobile banditry, and he appeals.

Affirmed.

See, also, 180 N. E. 580.

A. T. Livengood, of Covington, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Asst. Atty. Gen., for the State.

MYERS, J.

Appellant, with Tony Mahoney and two other persons, was charged by affidavit with the alleged offense of automobile banditry. Acts 1929, p. 136, c. 54, § 3, section 2548, Burns' Supp. 1929. Appellant had a separate trial and was convicted. Judgment and sentence of imprisonment followed. On appeal to this court he assigns as error the overruling of his motion to quash the affidavit; the overruling of his motion in arrest of judgment; and the overruling of his motion for a new trial.

That part of the affidavit material to the questions presented charged that appellant and others, naming them, “did then and there unlawfully and feloniously rob, take, steal, carry, and haul away of the goods and chattels of Jack Winterstein, two slot machines and the money therein contained, all of the value of One Hundred dollars or more,” by violence and putting in fear one Adrian Lutz, who was then and there in charge of the slot machines and money, for and on behalf of Jack Winterstein. Appellant and the others named, at the time and place, had on and near the premises of the robbery when the robbery was committed by them “a self-moving vehicle, to-wit: an automobile, by the use of which they intended to escape and did escape, contrary,” etc.

The statute defining automobile banditry provides that, “if any person or persons shall commit or attempt to commit a felony, having at the time on or near the premises where such felony is attempted or committed, an automobile *** by the use of which he or they escape, attempt to escape [or intend to escape] *** shall be guilty of automobile banditry.”

[1] In the instant case robbery is designated as the felony committed, and the facts constituting that offense must be stated in the affidavit. Our statute, at present material, defines robbery as follows: “Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery.” Acts 1929, p. 136, c. 54, § 1, section 2425, Burns' Supp. 1929. The motion to quash and in arrest of judgment challenged the affidavit for failure to allege that the articles mentioned in the affidavit were taken “from the person” of Lutz.

Robbery was a crime at common law. It was then defined as “the felonious and forcible taking from the person of another, goods or money to any value, by violence or putting him in fear.” 3 Bouvier's (Rawle's 3d Rev.) p. 2971. Under this definition it was held that, if property was taken feloniously with force or violence, or by putting in fear, in the presence of the owner, it was, in legal contemplation, a taking from his person. Rex v. Francis, 2 Strange, 1015; 1 Hale P. C. 532.

[2][3][4][5] While we are not unmindful of the rule that criminal statutes must be strictly construed in favor of the accused, yet if, by applying the canons of interpretation to the wording of the statute, the legislative intention is in reality expressed, then the mischief falling within its language should be included. Since our statute uses the words “from the person of another,” it would not be unreasonable to assume that the Legislature intended that they should be given the same meaning attributed to them at common law, and, thus construed, it is not essential to a conviction for the crime of robbery, as said in Hill v. State, 42 Neb. 503, 527, 60 N. W. 916, 923, “that the property be taken from the body of the person wronged. It is sufficient if taken from his personal presence or personal protection.” The affidavit at bar alleges that Lutz “was then and there in charge of the slot machines and money,” the words “in charge of” being used in the sense, in receipt of or in the possession of. While the affidavit does not charge the taking of the slot machines and money from the person of Lutz, yet the language used is equivalent to saying that they were taken from his presence or from his possession which, according to the principles of law above stated, is sufficient to charge robbery and to repel a motion to quash and in arrest of judgment. People v. Covelesky, 217 Mich. 90, 185 N. W. 770;People v. Braverman, 340 Ill. 525, 530, 173 N. E. 55;People v. O'Hara, 332 Ill. 436, 163 N. E. 804;State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252;Sims v. State, 23 Ala. App. 387, 126 So. 498;People v. Stevens, 141 Cal. 488, 75 P. 62;Jackson v. State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 60;Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242;Porello v. State, 121 Ohio St. 280, 288, 168 N. E. 135;Commonwealth v. Homer, 235 Mass. 526, 127 N. E. 517;Mahoney v. State (Ind. Sup.) 180 N. E. 580, this term; 8 Ann. Cas. note p. 127; 23 R. C. L. 1142.

[6] Appellant has suggested several causes in support of his motion for a new trial:

(1) Overruling his motion for a change of venue from the county. In all criminal cases not punishable by death the trial court may, in its discretion, grant a change of venue from the county. Section 2239, Burns' 1926. The granting, or refusing to grant, such change will not be disturbed on appeal, unless there is a clear abuse of such discretion. Pindell v. State, 196 Ind. 175, 147 N. E. 711. No such showing is made in this case.

[7] (2) Finding contrary to law for want of a plea to the affidavit. The record discloses that appellant waived an arraignment, but it is silent as to the plea. Since section 197 of the Act of 1905, p. 584, c. 169, was amended (Acts 1927, p. 411, c. 132, § 9, section 2232, Burns' Supp. 1929), failure to plead to an indictment or affidavit in a criminal prosecution will not authorize the granting of a new trial, unless the record discloses an objection by the defendant to entering upon the trial for want of an arraignment or plea. Appellant does not claim to have made any such objection. Tokacs v....