Ewing v. State

• Decision Date: 19 May 1921
• Docket Number: No. 23849.,23849.
• Citation: 190 Ind. 565,131 N.E. 43
• Parties: EWING v. STATE.
• Court: Indiana Supreme Court

190 Ind. 565

131 N.E. 43

EWING

v.STATE.

No. 23849.

Supreme Court of Indiana.

May 19, 1921.

Appeal from Circuit Court, Dekalb County; Dan M. Link, Judge.

Le Roy Ewing was convicted of burglary in the second degree, and he appeals. Judgment affirmed.Nash & Henslee, of Garrett, and Hoffman & Stump, of Auburn, for appellant.

U. S. Lesh and Dale F. Stansbury, both of Indianapolis, for the State.

WILLOUGHBY, C. J.

This was a prosecution for burglary in the second degree. The affidavit charges the appellant with burglarizing a freight car belonging to the Baltimore & Ohio Railroad Company on the tracks of said company at Garrett, Dekalb county, state of Indiana.

There was a trial by jury, and a verdict of guilty, upon which judgment was rendered, and from such judgment the appellant appeals and assigns as error: That the Dekalb circuit court erred in overruling appellant's motion for a new trial; (2) that said court erred in overruling appellant's motion in arrest of judgment; (3) that said court erred in overruling appellant's motion for a venire de novo.

The errors assigned in the motion for a new trial are: That the court erred in giving certain instructions; and, that the verdict was contrary to law, and not sustained by sufficient evidence.

The motion in arrest of judgment is as follows:

“Comes now the above-named defendant, and moves the court in arrest of judgment in the above-entitled cause, and that no judgment be rendered on the verdict therein for the reason that the facts stated in the affidavit do not constitute a public offense.”

In the motion for a venire de novo, the appellant states that:

First. The verdict does not define the crime of which the defendant is found guilty.

Second. The verdict does not state the degree of burglary of which the defendant is convicted.

Third. The verdict does not state what crime the jury found the defendant guilty of.

The affidavit upon which the appellant was prosecuted, omitting the caption and signatures, is as follows:

“Grover Easter, being duly sworn, upon his oath says that one Le Roy Ewing, late of said county, on or about the 15th day of April, A. D. 1920, at said county and state aforesaid did then and there unlawfully, feloniously, and burglariously, in the nighttime, break and enter into a certain railroad freight car, to wit: One car bearing the name Northern Pacific, and numbered 44639, then and there being the property of the Baltimore & Ohio Railroad Company, and in the possession of said company, and then and there situate in Garrett yards of said Baltimore & Ohio Railroad Company, in Dekalb county, state of Indiana, with intent then and there feloniously and burglariously to take, steal and carry away the goods, chattels and personal property of the said Baltimore & Ohio Railroad Company, a common carrier, then and there being contrary to the form of statute in such cases made and provided and against the peace and dignity of the state of Indiana.”

[1] This affidavit alleges every fact necessary to show a violation of the second section of chapter 165 of the acts of 1915, which defines burglary in the second degree. See Acts 1915, pp. 619, 620; Edwards v. State, 62 Ind. 34;Sims v. State, 136 Ind. 358, 36 N. E. 278;Choen v. State, 85 Ind. 209;Hunter v. State, 29 Ind. 80;Barnhart v. State, 154 Ind. 177, 56 N. E. 212.

[2] It is apparent that the court did not err in overruling appellant's motion in arrest of judgment. The appellant in this case was charged with the crime of burglary in the second degree. A verdict of guilty upon that charge means a verdict of guilty of burglary in the second degree, and it was not necessary for the verdict to state the crime of which the appellant was found guilty.

[3] It has been held in this state that a motion for a venire de novo will not be sustained unless the verdict is so defective and uncertain on its face that no judgment can be pronounced upon it. The verdict, however informal, is good if the court understands it. It is to have a reasonable intendment, and is to receive a reasonable construction, and is not to be avoided except from necessity. Goodman v. State, 188 Ind. 70, 121 N. E. 826, and cases there cited. The motion for a venire de novo was properly overruled.

Appellant claims that a new trial should have been granted because “the defendant was tried without any plea being entered of record.” It appears from the record in this case, and also by appellant's brief, that this reason was not assigned as a cause for a new trial in appellant's motion for a new trial. However, the return to a writ of certiorari correcting the transcript in this court shows that a plea of not guilty was entered in the trial court and trial had on the issue thus joined.

[4] Appellant claims that the court erred in giving instruction No. 3 as the law under which the defendant was being tried. Appellant insists that this act was repealed by the act of March 10, 1915 (Acts 1915, p. 619). These statutes, section 1 of the act of 1907 (Acts 1907, p. 249) and section 2 of the act of March 10, 1915 (Acts 1915, p. 619), are exactly alike, except that the older statute includes a “dwelling” among the objects of burglary, while the later statute does not. This could not have harmed appellant, as he was not on trial for burglarizing a dwelling, and there was no evidence that he entered a dwelling. The charge was burglarizing a railroad freight car, and upon that charge he was being tried. The old statute also prescribes a penalty of imprisonment from 10 to 20 years, while the new statute prescribes a penalty of imprisonment of not less than 2 years nor more than 14 years. The court copied the older statute in the instruction read to the jury. This was error, but could not have been harmful to appellant. It cannot be assumed that the jury would more readily...