Hamilton v. The State

• Decision Date: 15 October 1895
• Docket Number: Mo. 17,622
• Citation: 41 N.E. 588,142 Ind. 276
• Parties: Hamilton v. The State
• Court: Indiana Supreme Court

41 N.E. 588

142 Ind. 276

Hamilton v. The State

Mo. 17,622

Supreme Court of Indiana

October 15, 1895

From the St. Joseph Circuit Court.

The judgment is reversed, with instructions to grant the appellant's motion for a new trial.

F. M Jackson and J. W. Talbot, for appellant.

W. A Ketcham, Attorney-General, and O. M. Cunningham, for State.

Hackney J. Howard, C. J., did not participate in this case.

OPINION

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 and 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, R. S. 1894, section 2007; R. S. 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 * act." 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 17, and the next morning took the road with their newly chosen comrades. At about nine 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 fifteen to seventeen dollars in money, consisting of one ten dollar bill, one two dollar 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 out house, and after he had been there from three to five minutes, he discovered that his purse and money were missing. Returning to the saloon, he remained some time, when he told his friend, Gross, that the "hobos" had taken his money,...