Garber v. State

• Citation: 94 Ind. 219
• Decision Date: 25 March 1884
• Docket Number: 11,395
• Parties: Garber et al. v. The State
• Court: Supreme Court of Indiana

94 Ind. 219

Garber et al. v. The State

No. 11,395

Supreme Court of Indiana

March 25, 1884

From the Clinton Circuit Court.

The judgment is affirmed, with costs.

A. E Paige and S. O. Bayless, for appellants.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Niblack J.

The appellants Sarah H. Garber and Annie Lambert were, at the November term, 1883, of the court below, indicted, tried and, by a jury, found guilty of petit larceny, and, a new trial being refused, they were, in accordance with the verdict, adjudged to pay a fine of one dollar each, and to be imprisoned in the penal department of the Indiana Reformatory Institution for Women and Girls for the term of one year.

Error is assigned upon the alleged insufficiency of the indictment, and upon the refusal of the court to grant a new trial.

The indictment charged "that Sarah H. Garber and Annie Lambert, on the 30th day of October, 1883, at said county of Clinton and State of Indiana, did then and there unlawfully and feloniously steal, take and carry away divers goods and chattels of one Gottlieb Gatz, to wit: Eighteen yards of lace, of the value of $ 2.25," and other enumerated articles of merchandise, all "being then and there of the aggregate value of $ 9.25."

The only objection urged to the indictment is that it does not charge in direct terms that the articles taken were the property of Gatz, and that in respect to the ownership of the property the indictment is too uncertain.

In the respect complained of, the indictment is substantially in the usual form, and is, consequently, sufficient. King v. State, 44 Ind. 285; Bicknell Crim. Pr. 324; Indiana Crim. L. 76; Moore Crim. L., p. 895.

It is insisted that the evidence did not show Mrs. Garber to be over fifteen years old, and that on that account the verdict was not sustained by sufficient evidence.

In the first place, no question seems to have been directly made at the trial upon the ages of the appellants, and in the absence of any evidence on the subject, the presumption would have been that both were adults. Palmer v. Wright, 58 Ind. 486. It, however, came out at the trial that Mrs. Garber had a son then eight years old, and that circumstance was, we think, quite sufficient to raise the presumption that she was over fifteen years old.

It is lastly complained that the court erred in giving instruction known as No. 1, on its own motion.

That...