Hamilton v. State

• Decision Date: 15 October 1895
• Citation: 142 Ind. 276,41 N.E. 588
• Parties: HAMILTON v. STATE.
• Court: Indiana Supreme Court

142 Ind. 276

41 N.E. 588

HAMILTON

v.STATE.

Supreme Court of Indiana.

Oct. 15, 1895.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

Daniel Hamilton was convicted of larceny, and appeals. Reversed.

John W. Talbot, for appellant. Oliver M. Cunningham and Wm. A. Ketcham, Atty. Gen., for the State.

HACKNEY, J.

The appellant was prosecuted and convicted, in the circuit court, upon an information charging that he, with others, on the 18th day of March, 1895, at, etc., did “unlawfully and feloniously take, steal, and carry away, of the personal property of Jacob Miller, sixteen dollars in money, then and there of the value of sixteen dollars, contrary to the form of the statute,” etc.

The action of the circuit court in overruling appellant's motion to quash the information and his motion for a new trial is assigned as error. The sufficiency of the information is questioned because of the absence of an allegation that the money was taken with intent to deprive the owner of it. The charge is substantially in the language of the statute defining the offense. Rev. St. 1894, § 2007 (Rev. St. 1881, § 1934). This ordinarily, is sufficient. Smith v. State, 85 Ind. 553;Bates v. State, 31 Ind. 72;Malone v. State, 14 Ind. 219. The word “feloniously,” employed in the charge, as said in Scudder v. State, 62 Ind. 13, “qualified and rendered criminal the * * * acts.” That word, as it is used in the statute defining the offense of larceny, was intended to supply that element of the ordinary definition of larceny implying criminal intent, and its use in the information was, for the same purpose, entirely sufficient.

That the conviction was not supported by the evidence is next pressed upon our attention with much earnestness, and we have carefully read all of the evidence in the record. It was disclosed that the appellant and another young man were tramping through St. Joseph county, when they came upon six other tramps, with whom they remained over the night of March 17th, and the next morning took the road with their newly-chosen comrades. At about 9 o'clock, of the forenoon of that day, the eight men reached the village of Littleton, in said county, and entered Rhinehart's saloon, where they remained until near noon. During their visit to the saloon, the prosecuting witness, Jacob Miller, visited the saloon twice, and on the second visit remained until the tramps went away. Miller and the tramps drank frequently and played cards together; and just before the convivial party dispersed, while standing at the bar, taking the final drink, the appellant pressed in against Miller, on the right, and between him and one Gross, who stood very near. It is not clear that it was necessary for the appellant to do so that he might reach the bar, but at that point he secured his glass and took the drink. When Miller went to the bar on this occasion, he had in a purse, kept in a pocket on the right hip, from $15 to $17 in money, consisting of one $10 bill, one $2 bill, and some silver money. That Miller had money in that pocket the appellant had an opportunity to know. When this last drink had been taken, the appellant and his comrades left the room, and went to Bremen, a point some six miles distant, leaving Miller and some others in the saloon. After the departure of the tramps, some two or three minutes, Miller went out of the building to an outhouse, and, after he had been there from three to five minutes, he...