Duffy v. State

• Decision Date: 23 February 1900
• Docket Number: 19,163
• Parties: Duffy v. The State
• Court: Indiana Supreme Court

56 N.E. 209

154 Ind. 250

Duffy v. The State

No. 19,163

Supreme Court of Indiana

February 23, 1900

From the Marion Criminal Court.

Affirmed.

Frank Hendricks, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

Jordan, J.

Appellant was charged with the crime of robbery, and, on a trial before a jury was convicted of petit larceny. A motion for a new trial, which assigned as errors the giving of certain instructions, and also that the verdict was contrary to law and the evidence, was overruled. The court adjudged that appellant be imprisoned in the State's prison for an indeterminate period of not less than one and not more than three years, and that he be fined in the sum of $ 1, and disfranchised and rendered incapable of holding any office of trust or profit for a period of one year.

The sole error assigned is the overruling of the motion for a new trial. His counsel complain of the third, ninth, and tenth instructions in the series given by the court on its own motion.

The indictment charged that appellant, at the time and place therein named, "did feloniously, violently, and forcibly make an assault upon Francis Leak, and did then and there and thereby feloniously and forcibly, with violence and by putting in fear, steal, take, and carry away from the person of the said Francis Leak $ 6 in money, of the value of $ 6 of the property of the said Francis Leak," etc.

By the third instruction, the court, after reading to the jury the statute defining the offense of petit larceny, informed them that, under the indictment, the defendant might be convicted of that crime if they were satisfied, beyond a reasonable doubt, that the property was taken by the defendant from the prosecuting witness, but was not taken by force or by putting him in fear. The ninth charge in part is as follows: "If you and each of you are satisfied beyond a reasonable doubt that this defendant at the time and place and in the manner and form charged in the indictment, did feloniously steal, take, and carry away the personal goods of said Francis Leak of the value of less than $ 25, then it is your duty to find him guilty of petit larceny, and find his age." By the remainder of the same charge, the court advised the jury in regard to their right, in the event they found the defendant guilty of petit larceny, to assess his punishment, if they deemed it sufficient, at imprisonment in the Marion county jail or workhouse for any determinate period not exceeding one year, and that he be fined in any sum not exceeding $ 500, and disfranchised and rendered incapable of holding any office of trust or profit for a determinate period. By the tenth charge, the court informed the jury that if they had a reasonable doubt of the defendant's guilt of the charge of robbery, as charged in the indictment, it was their duty to resolve that doubt in his favor, and he should be acquitted; or that, if each of them had a reasonable doubt that the defendant did feloniously steal, take, and carry way the personal goods of the said Leak, as charged in the indictment, then that doubt should be...