Davis v. State, No. 24696.

• Docket Nº: No. 24696.
• Citation: 197 Ind. 448, 151 N.E. 329
• Case Date: March 31, 1926
• Court: Supreme Court of Indiana

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.

[151 N.E. 330]

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

[151 N.E. 331]

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...