Graves v. State

• Decision Date: 20 December 1889
• Citation: 121 Ind. 357,23 N.E. 155
• Parties: Graves v. State.
• Court: Indiana Supreme Court

121 Ind. 357

23 N.E. 155

Graves

v.State.

Supreme Court of Indiana.

Dec. 20, 1889.

Appeal from circuit court, Vigo county; William Mark, Judge.

Indictment against Alexander Graves for the larceny of a sum of money from John F. Ferguson. Upon conviction defendant appealed.

T. W. Harper, for appellant. The Attorney General, for the State.

Elliott, J.

The evidence very satisfactorily shows that the appellant feloniously took from the safe of John F. Ferguson various sums of money at different times, amounting, in the aggregate, to more than $400; but the only evidence of the kind of money taken is that of Ferguson, who said that it was “good and lawful money of the United States.” This evidence was not objected to when it was offered, nor was any question made as to its competency until the court came to instruct the jury, and no question is made upon the instructions given or refused. Other witnesses testified that they saw the accused with paper money, but none of them gave a description of it, further than to say that he asked for change for a 10-dollar bill and a 20-dollar bill. Ferguson also testified on cross-examination, in answer to the question, “What kind of money was it?” that “I got it from Koons, Bartlett & Co. It was good enough to buy corn with.” As there was no objection to the competency of the evidence, it was proper to permit the jury to act upon it. The rule declared by our own and other courts is that where evidence which is objectionable is permitted to go to the jury without objection, and it is such as will prove a fact, a verdict founded on it will be sustained. This is in harmony with the general rule substantially thus stated by some of the authorities: “A party objecting to a variance between the pleadings and the proof must make his objection at the proper time during the trial, and, if he does not, he cannot afterwards avail himself of the objection.” Belknap v. Sealey, 14 N. Y. 143;Manice v. Brady, 15 Abb. Pr. 173;Shall v. Lathop, 3 Hill, 238;Pike v. Evans, 15 Johns. 213;Doyle v. Mulren, 7 Abb. Pr. (N. S.) 258. In Roberts v. Graham, 6 Wall. 578, the supreme court of the United States said: “The objection of a variance not taken at the trial cannot avail the defendant as an error in the higher court, if it could have been obviated in the court below; nor can it avail him on a motion for a new trial.” This general doctrine was applied, in a criminal case, in Cross v. State, 47 Ill. 152. We have often held that a verdict will be sustained on evidence which would have been excluded, had proper objection been made. Stockwell v. State, 101 Ind. 1;Riehl v. Association, 104 Ind. 70, 3 N. E. Rep. 633; Yeager v. Wright, 112 Ind. 237, 13 N. E. Rep. 707; McFadden v. Fritz, 110 Ind. 5, 10 N. E. Rep. 120; Railway Co. v. Finnell, 116 Ind. 414-422, 19 N. E. Rep. 204. There was, therefore, evidence before the jury upon which they were authorized to act, and we cannot say that they erred in deciding that when the witness testified that it “was good and lawful money of the United States” he meant...