Hoy v. State
| Decision Date | 28 April 1949 |
| Docket Number | 28464. |
| Citation | 85 N.E.2d 493,227 Ind. 346 |
| Parties | HOY v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Monroe Circuit Court; Q. Austin East, Judge.
Mellen & Mellen, of Bedford, for appellant.
Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen., and Merl M. Wall and Alvin E. Meyer, Deputy Attys. Gen., for appellee.
In the trial court, appellant was charged by an affidavit in two counts. Count one charges that on December 9, 1946 by force violence, and putting in fear, he robbed, took and stole from the person of one, Bob Y. Jean, $120 in United States currency.
Count two charges that he took, stole and carried away $120 in United States currency, the property of Bob Y. Jean.
The cause was put at issue by plea of not guilty. A trial by jury resulted in finding of guilty of petit larceny, fine of $500 and commitment to the County Jail for eleven months. A motion for new trial timely filed, was overruled. From a judgment on the verdict, this appeal is taken.
By his assignment of error appellant questions only the action of the trial court in overruling his motion for new trial. The reasons for his motion for new trial presented in the brief, are as follows: (1) Error in overruling appellant's motion for a directed verdict. (2) Error in overruling appellant's objection to the reading of § 10-401, Burns' 1942 Replacement to the jury, by the prosecuting attorney in his argument to the jury. (a) Error of the court in orally instructing the jury at the time of the ruling, 'that if it isn't applicable to the case to disregard the contents of said statute.' (3) Error in giving the jury Instruction No. 9 tendered by the State. (4) That the verdict is contrary to law, because not sustained by evidence. We shall consider such of these questions in the order stated.
At the close of the state's evidence in chief, appellant filed a written motion for a directed verdict for the defendant which was overruled. Appellant claims this was error because, he contends the evidence was not sufficient to prove the corpus delicti as laid in either count of the affidavit. But after his motion for a directed verdict was overruled appellant proceeded with the introduction of evidence. Thereby he waived his motion and the alleged error. White v. State, 1941, 219 Ind. 290, 297, 37 N.E.2d 937; Bowen v. State, 1920, 189 Ind. 644, 651, 128 N.E. 926.
2. Over appellant's objection, the prosecuting attorney was allowed to read § 10-401, Burns' 1942 Replacement to the jury in his argument. This section reads as follows: 'Whoever perpetrates an assault or assault and battery upon any human being with intent to commit a felony, shall, on conviction, be imprisoned in the state prison for not less than one (1) nor more than ten (10) years.'
We think the offense defined in this statute was contained in the offense charged in the first count of the affidavit. The objection was therefore properly overruled. However, the jury found appellant guilty of petit larceny only, conclusively indicating that it ignored the statute read and the ruling of the court with respect thereto.
3. Instruction No. 9 tendered by the state and given by the court is as follows:
'The Court instructs the Jury that every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command or otherwise procure a felony to be committed may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction, he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.
'And in this case of The State of Indiana against Sam Hoy, if it has been proven by the evidence in this case beyond a reasonable doubt that Sam Hoy, the defendant now on trial, did aid or abet in the commission of the felony with which he is charged herein in Count One and Two of the approved affidavit, you may, if you are satisfied from such evidence beyond a reasonable doubt that he is guilty of the commission of such crimes or either of them so find him guilty.'
Appellant is not charged as an accomplice, an accessory, or as aiding and abetting, but he is charged alone as a principal. This is agreeable with the statute quoted in the first sentence of the instruction, § 9-102, Burns' 1942 Replacement. Simpson v. State, 1925, 195 Ind. 633, 637, 146 N.E. 747; White v. State, supra, 219 Ind. at page 296, 37 N.E.2d 937; Breaz v. State, 1938, 214 Ind. 31, 34, 13 N.E.2d 952; Evans v. State, 1946, 224 Ind. 428, 432, 68 N.E.2d 546.
The prosecuting witness testified that on the night in question about 9 o'clock he put $120 in the left pocket of his pants, and started home from his laundry in Bloomington; that he was stopped by appellant at or near the Pullman Hotel and appellant started talking to him. That he the witness, tried to go in the hotel, but appellant grabbed him around the neck and choked him. When the witness cried out appellant choked and slapped him. Two other men came and helped appellant. The three held the witness, pulled him out of the hotel door to Morton Street, and shoved and pulled him into the alley there. Witness then tried to run away, then the three men knocked him down, and appellant kicked him several times. Witness got up and they shoved him down, he got out of his coat and ran away. Shortly afterwards on the same evening appellant was arrested. At the police station that night witness discovered that his money was gone, and he asked appellant who other two men were and 'where is my...
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