Fleming v. The State
| Decision Date | 09 January 1894 |
| Docket Number | 16,944 |
| Citation | 36 N.E. 154,136 Ind. 149 |
| Parties | Fleming v. The State |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Judgment is reversed.
W. A Kittinger and L. M. Schwinn, for appellant.
A. G Smith, Attorney-General, and B. H. Campbell, Prosecuting Attorney, for State.
The appellant was indicted for the crime of grand larceny in the stealing of twenty-five dollars and a railroad ticket good for passage from Anderson to Chicago and return, of the value of ten dollars.
The only charge as to the time of the commission of said offense is as follows: "On the day of -----, 189--," and the ownership of said money and ticket is charged to have been in the "Pittsburgh, Cincinnati, Chicago and St Louis Railroad Company."
Trial was had by a jury, and upon a finding that the appellant was guilty as charged, he was sentenced to imprisonment in the State's prison for the term of one year.
The first alleged error discussed is in the action of the trial court in overruling the motion to quash the indictment. The objection to the indictment is that it does not charge the offense to have been committed within the period of the statute of limitations.
Under section 1756, subd. 8, R. S. 1881, it has been held that the imperfect statement of the time of the commission of an offense shall not be sufficient to set aside or quash an indictment or information. State v. Sammons, 95 Ind. 22; Murphy v. State, 106 Ind. 96, 5 N.E. 767; State v. McDonald, 106 Ind. 233, 6 N.E. 607; State v. Patterson, 116 Ind. 45, 10 N.E. 289.
It is also held by these cases, that the failure to charge a time, when time is not of the essence of the offense, will not vitiate an indictment. Viewing the indictment in this case, either as stating no time or imperfectly stating a time, it would not be subject to the appellant's motion.
The appellee's case, upon the evidence, rested upon the theory that the possession of the ticket and money was procured from the railway company by a deceitful and fraudulent method, in this, that, pursuant to a previous felonious design, he called at the ticket window, asking for a round trip ticket to and from Chicago, and, as he did so, handing the agent a bill of the denomination of fifty dollars, the same not being of the current money of the United States, but of the issue of the Confederate States of America, of date February 17th, 1864; that, as he handed the bill to the agent and asked for the ticket, he engaged the attention of the agent by further stating that he was going to Chicago to purchase horses for his father. The agent, not recognizing the character of the bill, stated that he had not sufficient money to pay the difference between the price of the ticket and the amount represented by the bill, whereupon the appellant stated that it was all right and that the agent should give him what he had and should give the balance to Mr. Barnes, a hardware merchant in the city of Anderson, who, as he falsely stated, was his father; that the agent, being deceived by the facts stated, delivered to the appellant a ticket and twenty-five dollars, which were feloniously carried away and appropriated by him.
The admissibility of said bill in evidence, and testimony that it was valueless, is questioned by the appellant upon the ground, as insisted, that larceny does not exist in procuring said ticket and money in the absence of any false statement or representation as to the character or value of said bill. The evidence tended to support the theory of the prosecution, and we have no doubt was admissible, and if the theory stated is within the evidence it constitutes larceny.
It is no longer in doubt in this State that larceny may exist although the possession of the alleged stolen goods is obtained with the consent of the owner, if that consent is procured by deception and with the intention not to return the same, but to appropriate the same and deprive the owner thereof and of a remedy for their loss. Under the facts stated, the appellant formed the design to obtain a ticket and a sum of money by deception, and it is clear that he intended, both before and at the time he did so obtain them, to appropriate them to his own use and to deprive the company of them. These two purposes formed constitute the felonious elements of the crime of larceny, when carried into execution, and the crime is as complete as if...
To continue reading
Request your trial