Currier v. State
| Decision Date | 18 June 1901 |
| Docket Number | 19,581 |
| Citation | 60 N.E. 1023,157 Ind. 114 |
| Parties | Currier v. The State |
| Court | Indiana Supreme Court |
From Elkhart Circuit Court; J. D. Ferrall, Judge.
William W. Currier was convicted of grand larceny, and appeals.
Affirmed.
J. S Dodge and J. S. Dodge, Jr., for appellant.
W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.
The appellant was convicted upon an indictment for grand larceny. He contends that there was no evidence of his guilt, and that his request for a peremptory instruction to the jury directing his acquittal should have been sustained. The facts proved were these: The prosecuting witnesses, Charles H. Maloney and Edward Collins, co-partners, were plumbers engaged in business in the city of Elkhart, Elkhart county, Indiana. The appellant was the owner of a greenhouse in the same county. About November 1, 1900, he spoke to Maloney & Collins in regard to a change in the heating appliances in his greenhouse, and the substitution of pipes three inches in diameter for the one-inch pipe then in use. Maloney & Collins offered to furnish the new pipe, and to put it in place for about $ 450, but upon the express condition that the appellant should first secure them in the contract by the execution of his promissory notes for $ 40 each, maturing monthly, to the full amount of the contract price of the pipe, and the work of putting it in place, with one Lehman as surety. Appellant assented to this proposition, and Maloney & Collins ordered 1,000 feet of three-inch pipe from a Chicago house. Some twenty days later, when the pipe arrived at the railroad depot at the city of Elkhart, they authorized the appellant to haul it on his wagon to his farm and to deposit it there for their use, which he did. Before proceeding further, Maloney & Collins demanded the execution of the notes with the security promised. The appellant at first said that Lehman was out of the city. Afterwards, on being pressed by the prosecuting witnesses, he declared that Lehman was not worth anything. Maloney & Collins, however, expressed their willingness to accept Lehman as surety on the notes. The appellant then said that he did not agree to give Lehman as his surety, but that Maloney & Collins were to put in the pipe, and that it was to remain their property until paid for. The prosecuting witnesses told him they had not made that agreement, and did not do business that way. On Saturday evening, appellant said to Maloney & Collins: One of the firm said to him: "We will be out Monday morning to get the pipe if you don't furnish the notes properly secured." The notes not having been executed according to the contract, Maloney & Collins went to appellant's farm on the following Monday to remove their pipe, but found only sixty feet of it. They then procured a search-warrant, and returned to the farm in company with the constable. They saw wagon tracks leading into a field some 100 rods distant from appellant's barn, and, following the tracks, they discovered 260 feet of their pipe hidden in the tall grass and weeds in the field. Maloney & Collins left a man to watch the pipe, and returned the next morning to take it away. Appellant, in the meantime, had put up a sign on the fence inclosing the field with this inscription upon it: "No one allowed to trespass on this property." While Maloney & Collins were looking for the pipe, and before they had discovered it, the appellant said to them that the matter could be settled, and he would return the remainder of the pipe if they would connect up the old pipe in the greenhouse (which had been detached), or pay some $ 7 for the expense of connecting it. He also said that he had hidden the pipe, and had carried it so far away that it would cost him $ 3 to get it back. Maloney & Collins declined this offer. The constable told appellant he would give him until the next day to return the pipe. Appellant laughed at this, but said he would go to the store and see the firm that evening. He failed to do so. It was proved that appellant stated to one Roy DeCamp that he had some trouble with Maloney & Collins in getting them to carry out their contract, and that he had taken the pipe as a means of protecting himself, and to make them do their job; that he meant to keep the pipe until he brought them to terms; that if he did not succeed, they would never see the pipe again; and that he would put it where they couldn't find it. He asked this witness how long pipe would stay under water without spoiling. To another witness he said: "I took it [the pipe] over in the field, and I want them to replevin it."
About one month elapsed from the time the pipe was hauled from the depot to appellant's farm until Maloney & Collins went out to get it and bring it to their store. The quantity taken to the farm was 1,000 feet, which was worth $ 300. The quantity discovered and taken back by the prosecuting witnesses was 640 feet, of the value of $ 192. The portion never found, and totally lost to the prosecuting witnesses, was 360 feet, worth $ 108. It was shown that Maloney & Collins, at the request of the appellant, had sent one of their men to the greenhouse to disconnect the old pipe; but this was no part of their contract, the appellant having undertaken to detach and remove the old pipe.
The claim is made on behalf of the appellant that he took the property honestly under a claim of a right to its possession. It is impossible to adopt this view. Neither the title to the pipe, nor the right of possession, was vested in the appellant. True, the pipe was deposited on his land, but it was there as the property of Maloney & Collins. It was there just as a box of...
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