Dean v. State

Decision Date14 January 1892
Citation29 N.E. 911,130 Ind. 237
PartiesDEAN v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Sullivan county; J. C. BRIGGS, Judge.

Information against John Dean for larceny. Judgment of conviction. Defendant appeals. Reversed.

John S. Bays, for appellant. W. C. Hultz, for the State.

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. Reiley v. State, 14 Ind. 217;Garner v. Gordon, 41 Ind. 92; Dye v. State, 29 N. E. Rep. 771, (last term;) O'Neil v. State, 42 Ind. 346;Kingen v. State, 50 Ind. 557;Card v. State, 109 Ind. 415, 9 N. E. Rep. 591; Rosc. Crim. Ev. 53; 1 Greenl. Ev. § 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, in 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 transactions 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 unconsequential 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. 386-400, 6 N. E. Rep. 803, and 7 N. E. Rep. 4.

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 transactions 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...

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