Dean v. State

• Decision Date: 14 January 1892
• Docket Number: 16,285
• Citation: 29 N.E. 911,130 Ind. 237
• Parties: Dean v. The State
• Court: Indiana Supreme Court

29 N.E. 911

130 Ind. 237

Dean v. The State

No. 16,285

Supreme Court of Indiana

January 14, 1892

From the Sullivan Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

J. S Bays, for appellant.

W. C Hultz and J. T. Hays, for appellee.

OPINION

Miller, J.

A prosecution was instituted against the appellant and his wife for larceny, and receiving stolen goods. The appellant was tried, separately, and convicted on the count in the information charging larceny.

During the trial the State introduced evidence, over the objections of the appellant, of declarations and admissions made by his wife, in his absence, long after the time when it was claimed the crime was committed.

This evidence was inadmissible for any purpose. Reilley v. State, 14 Ind. 217; Garner v Gordon, 41 Ind. 92; Dye v. State ante, p. 87; O'Neil v. State, 42 Ind. 346; Kingen v. State, 50 Ind. 557; Card v. State, 109 Ind. 415, 9 N.E. 591; Roscoe Crim. Ev., 53; 1 Greenl. Ev., section 111.

The court told the jury that such evidence could only be considered as applicable to the count charging the appellant with receiving stolen property; and that they should not consider it, or give it any weight against him, on the charge of larceny. The defendant, having been convicted alone on the count charging larceny, could not have been injured by the admission of this evidence.

The prosecuting attorney testified as a witness, and during the course of his examination in explaining his official conduct testified that his attention was called to the matter by a statement of an attorney employed in a civil suit growing out of the same transaction, to the effect that there was "crime there that ought to be investigated."

We are of the opinion that, while this evidence was not strictly admissible, it was so vague and inconsequential that it did not probably injure the appellant, and that it is not of sufficient importance to impose upon us the duty of reversing the judgment. Henning v. State, 106 Ind. 386, 6 N.E. 803 (400).

The prosecutor also stated that he delayed the institution of criminal proceedings against the appellant for a time on account of his desire not to interfere with civil suits then pending between the parties in relation to the transaction upon which the criminal proceedings were based. We see no error in the admission of this evidence. It does not assume that a crime had been committed.

Complaint is made that the court unduly limited the appellant in his cross-examination of some of the witnesses for the State.

An examination of the record discloses the fact that each of the witnesses was cross-examined at length, and, while we think that the court might have permitted some of the questions propounded to have been answered, we find no such abuse of the discretion, necessarily lodged in the trial court, as would justify us in disturbing the judgment.

There was evidence before the court and jury that the money which was the subject of the supposed larceny had been in the possession of the prosecuting witness, one John J. Martin, for several years. Martin had testified as a witness that he did not remember what he had told the assessor who had assessed him for certain years, nor did he remember what he had sworn to in his schedules as to the amount of money belonging to him. The appellant then gave in evidence his tax schedules for these years:

Upon this subject the court gave to the jury the following instruction:

"14. The tax schedules of Mr. Martin were admitted in evidence as touching the question of the ownership of the money. If the money belonged to John J. Martin, then the tax schedules are no longer material. And, if you find from the evidence that the money did belong to Mr. Martin, you are not to consider the tax schedules any further on that point. Whether or not Mr. Martin is guilty of a wrong in connection with the tax schedules is entirely foreign to the question of defendant's guilt or innocence. If the money was Mr. Martin's, and the defendant stole it, or received it knowing it to be stolen, it could be no possible defence to him that Mr. Martin may have omitted it from his tax schedules."

This instruction deprived the appellant of the right of having the jury take this evidence into consideration, for...