Joslyn v. State

• Decision Date: 29 April 1891
• Citation: 128 Ind. 160,27 N.E. 492
• Parties: Joslyn v State.
• Court: Indiana Supreme Court

128 Ind. 160

27 N.E. 492

JoslynvState.

Supreme Court of Indiana.

April 29, 1891.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

S. M. Hench, for appellant. J. M. Robinson and A. G. Smith, for the State.

Elliott, J.

The information charges, in one count, that the appellant feloniously did steal, take, and carry away one cutter bar, of the value of ten dollars, and two hundred pounds of iron, of the value of five cents per pound, of the personal property of James Gunnison; and one cutter bar, of the value of ten dollars, and two hundred pounds of iron, of the value of five cents per pound, the personal property of James Parham. If the count of the information from which we have quoted is double, it is bad for duplicity. The rule is well settled that duplicity is fatal upon a motion to quash. Siebert v. State, 95 Ind. 471-475;Stewart v. State, 111 Ind. 554-556, 13 N. E. Rep. 59; Fahnestock v. State, 102 Ind. 156, 1 N. E. Rep. 372; State v. Weil, 89 Ind. 286;Knopf v. State, 84 Ind. 316. Whether the pleading is double or not depends upon whether stealing the property of two different persons is prima facie one offense, or is two distinct offenses. We do not here controvert the doctrine that there may be cases where the larceny of the property belonging to different persons may constitute a single offense,-as, for instance, where it is all in one bundle or in one package; for it is unnecessary to do so, inasmuch as in such a case there is a single and indivisible act, and it may be a single crime. State v. Nelson, 29 Me. 329; 1 Hake, P. C. 531; Clem v. State, 42 Ind. 421; Ben v. State, 22 Ala. 9. If the information alleged that the property of the two owners was stolen at the same time and by the same act, so that it could be affirmed that there was a single larceny, we should, perhaps, be able to sustain the information. But the difficulty that arises cannot be solved by assuming that there was a single act, unless, as a matter of law, it can be adjudged that the larceny of property belonging to different owners, committed on the same day, constitutes a single crime; for there are no facts alleged tending to show that there was one indivisible offense. As there is only a single count, we are required to decide whether the larceny of property belonging to two different persons can, as matter of law, be considered to constitute one offense; for no more than one offense can be properly charged in one count of an indictment or information, although different offenses may be charged in different counts. It is well known that every larcenous taking is a trespass against the owner. An essential element of the crime of larceny is trespass, although the trespass may be constructive, and not actual. Assuming, as we must, that the element of trespass is essential to the crime of larceny, we must ascertain what the implication is, where it is charged that there was a trespass against two or more persons. It seems clear to us that the implication is that the trespasses were separate and distinct. If Gunnison had sued the appellant for the trespass, and had alleged that the appellant carried away his (Gunnison's) property, and that of Parham also, we suppose it to be plain that Gunnison could not recover the value of Parham's property; for the implication would be that there were distinct causes of action. If this is the implication, then the information is double. We can perceive no escape from this conclusion. We cannot infer, for the sake of upholding a conviction of a crime, that what would ordinarily be regarded as two distinct trespasses is, in fact, only one. The authorities require the conclusion we have suggested. In the case of Phillips v. State, 85 Tenn. 551, 3 S. W. Rep. 434, the goods belonged to different persons, but were taken on the same night from the same room, and it was held that there were two distinct offenses. In speaking of the trespass to the different owners, it was said: “The wrong to one of them was no wrong to the other, and, if the wrong to each was not a complete crime within itself, there is no wrong at all, because two acts involving the distinct rights and property of different individuals cannot be coupled in order to constitute one offense against the law.” Possibly the language used is a little too broad, but. restricting it to due bounds, nevertheless the principle declared decides the case against the state. Suppose, for the sake of illustration, that the appellant had been convicted of stealing Gunnison's property, and was subsequently indicted for stealing...