Jacoby v. State
| Decision Date | 15 March 1932 |
| Docket Number | 26,040 |
| Citation | 180 N.E. 179,203 Ind. 321 |
| Parties | Jacoby v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Evidence---Prosecuting Witness' Declarations---Made Two Weeks after Crime---In Absence of Accused---Held Improper.---In a criminal prosecution, the admission in evidence of the declarations of the prosecuting witness, made two weeks after the crime was committed, in the absence of the defendant, was improper. p. 323.
2. CRIMINAL LAW---Instructions---As to Alibi---Accused Entitled to Have Jury Correctly Instructed---Refusal of Correct Instruction is Reversible Error.---A defendant who has established an alibi is entitled to have such defense submitted to the jury by a proper instruction which correctly states the legal effect of the proof of an alibi, and the refusal to give defendant's tendered instruction, which did correctly state the law, was reversible error, where the instructions given on that subject did not cover all that the requested instruction did. p. 323.
3. CRIMINAL LAW---Defendant Charged with Crime as Principal and not as an Accomplice---Instruction as to Hiring or Procuring Crime to be Committed---Held Erroneous.---Where the defendant in a robbery prosecution was charged as a principal and not as an accomplice, an instruction regarding the hiring or procuring the crime to be committed was misleading and improper. p. 323.
From Allen Circuit Court; Lake E. Rariden, Special Judge.
Forest J. Jacoby was convicted of robbery, and he appealed.
Reversed.
Smith & Parrish, Lee J. Hartzell and Levi A. Todd, for appellant.
James M. Ogden, Attorney-General, and V. Ed Funk, Deputy Attorney-General, for the State.
Appellant was prosecuted by affidavit for the crime of robbery (§ 2425 Burns Supp. 1929), tried by a jury, and found guilty. He assigns as error the overruling of his motion for a new trial, in which, among other reasons, he presents the correctness of the court's action in giving and refusing to give certain instructions and in admitting certain evidence over his objection.
The State proved by the prosecuting witness, a collector for a chain of grocery stores, that appellant, with a companion, at 5:50 p. m. on November 4, 1930, in the city of Fort Wayne held him up with a revolver in his automobile and took from him about $ 300 which he had collected for his company, as well as $ 32 of his own money. He told the police the men weighed 140 or 150 pounds and how they were dressed. The police showed him pictures of men at the police station and one picture resembled appellant. The witness was allowed to testify that two weeks later, when he went with police officers to the Indianapolis police station, he saw appellant come up the steps and that he then "turned around . . . and told Mr. Lininger there was the man (who had robbed me) coming up the steps."
A police officer testified he saw appellant in Fort Wayne on the morning of the day of the robbery with two others in a blue coupe, that they looked suspicious and that he noted their automobile license number (which was appellant's number), and that he had also seen him there on October 31. The appellant, who operates a towel and linen supply business in Indianapolis, testified that, on November 4, election day he was in Indianapolis (all the day and night); that he had driven home from Buffalo, New York, through Fort Wayne, and stopped three-quarters of an hour there, the day before (November 3), and that he was in Fort Wayne in October looking the town over as a prospective location for business. He weights 210 pounds and is six feet tall. Four witnesses, his mother, his uncle, a young lady friend and a filling station attendant testified that they saw appellant at or near his home in...
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