Davis v. State

• Decision Date: 31 March 1926
• Docket Number: No. 24696.,24696.
• Citation: 197 Ind. 448,151 N.E. 329
• Parties: DAVIS v. STATE.
• Court: Indiana Supreme Court

197 Ind. 448

151 N.E. 329

DAVIS

v.STATE.

No. 24696.

Supreme Court of Indiana.

March 31, 1926.

Appeal from Blackford Circuit Court; Roscoe D. Wheat, Judge.

Kirby Davis was convicted of conspiring to take and drive away a certain automobile without the consent of the owner, and with conspiring to unlawfully receive, conceal, and aid in concealment of a certain automobile, knowing it to have been unlawfully taken, and he appeals. Reversed with directions.Emshwiller & Emshwiller, of Hartford City, and Eichhorn, Gordon & Edris, of Bluffton, for appellant.

A. L. Gilliom, Atty. Gen., and Edw. J. Lennon, Jr., Dep. Atty. Gen., for the State.

EWBANK, C. J.

Appellant and others were charged by the first count of an indictment with having feloniously conspired with certain other persons “to commit a felony, to wit, to then and there unlawfully and feloniously, without the consent of the owner, take, haul, carry and drive away a certain automobile,” describing it, and naming the owner; and he was charged by the second count with having feloniously conspired with the same persons “to commit a felony, to wit, to then and there unlawfully receive, buy, conceal, and aid in the concealment of a certain automobile” of the same alleged description and ownership, “knowing the same to have been unlawfully taken.” He was tried separately. The jury returned a general verdict finding him guilty as charged. Overruling his motions to quash the second count of the indictment and for a new trial, respectively, are assigned as errors.

[1][2] The objection urged against the sufficiency of said second count is that it does not charge a conspiracy to conceal, etc., an automobile, with knowledge that it had been unlawfully taken “without the consent of the owner.” But while it would be proper for the indictment to so charge, we think the allegation that the defendants “feloniously” conspired “to commit a felony” by “unlawfully” receiving, concealing, etc., an automobile, knowing it to have been “unlawfully” taken, sufficiently informed the defendants that they were charged with conspiracy to receive, conceal, etc., an automobile taken without the owner's consent. The words charging that they “did feloniously” so conspire “to commit a felony,” as described, supply the more formal allegations of an indictment which might more specifically describe the alleged offense. That they conspired to “receive, conceal,” etc., could not be felonious unless the automobile so received and concealed had been taken without the consent of the owner. Kaufman v. State, 49 Ind. 248, 249, 250;Owen v. State, 52 Ind. 379, 381, 382;Semon v. State, 62 N. E. 625, 158 Ind. 55, 57. To aver that an act was feloniously done “has the effect, as a matter of pleading, to characterize the act complained of as having been done in a manner prohibited by the statute.” Semon v. State, supra. It was not reversible error to overrule the motion to quash.

Appellant did not testify as a witness, and the statute giving accused persons the right to testify expressly enacts that-

“If the defendant do not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same.” Subdivision 4, § 2111, Burns' 1914, § 235 (chapter 169, Acts 1905, p. 636).

[3] Appellant had been indicted jointly with ten others, among whom was Rex Schug, but was tried separately. Much of the evidence consisted of testimony relating what Rex Schug had said and done and what had been said and done by other alleged conspirators at his place of business in Hartford City, Ind., when defendant Davis was not there. Witnesses testified that at the time of the trial Rex Schug was not living in Hartford City, and that they did not know where he then was. After the close of the evidence, an attorney representing the state, speaking of Rex Schug in his argument to the jury, said: “None of these amiable defendants have taken the stand and testified where he is.” An objection to this language being interposed, he added, “other than the defendant now on trial.” Nothing was done by the court in the way of admonishing the attorney that such language was improper, or instructing the jury that it was not proper and should not be considered; the court neither saying nor doing anything to indicate to the jury that counsel had no right to use such language in his argument or that they ought to disregard it. The defendant immediately moved that the case be withdrawn from the jury, and then moved that the jury be discharged, but each of his motions was overruled, and he excepted. These rulings were erroneous. Counsel for the state had clearly violated a right expressly given to defendant by statute, and, on objection being made, had added a reference to “the defendant now on trial,” which made the allusion to his failure to testify even more emphatic than before. Defendant did not waive the error, but promptly asked for relief by having the submission set aside and the jury discharged, and the court did nothing to cure the error, if, indeed, it were capable of being cured by an instruction or otherwise. Long v. State, 56 Ind. 182, 186, 26 Am. Rep. 19;Showalter v. State, 84 Ind. 562, 566;Blume v. State, 56 N. E. 771, 154 Ind. 343, 355.

[4] Over objections and exceptions by defendant, witnesses were permitted to testify that intoxicating liquor was drank at Rex Schug's place of business at different times when defendant was not shown to have been present or participating; some of the times being when the witnesses who gave the testimony said he was not there, others when it appeared by inference he could not have been present, and others when no attempt was made to show that he was present, or participated, or had any knowledge of what was done. It was not shown, nor was there any attempt to show, that this drinking of intoxicating liquor was in furtherance of the alleged conspiracy to commit either of the crimes charged, or had anything whatever to do with the alleged crimes or the conspiracy to commit them. It was error to admit this evidence.

[5][6] As was stated above, defendant did not testify as a witness. But he called nine witnesses who testified that his reputation for honesty and integrity in the community where he resided was good before and up to the time this indictment against him was returned. In rebuttal, the state called a witness who testified that defendant's said reputation was bad, and, in answer to further questions, stated that he (the witness) was at the scene of the automobile accident in which defendant was injured in May, 1922, 7 months before the automobile described in the indictment was stolen, and a full year before it was shown to have been concealed in the stone quarry, and that defendant seemed to be badly hurt. He was then asked whether or not defendant was intoxicated at that time, and over an objection and exception answered that he thought he was. Such proof of his intoxication did not tend to rebut the...