Mahoney v. State

• Citation: 180 N.E. 580,203 Ind. 421
• Decision Date: 31 March 1932
• Docket Number: 26,016
• Parties: Mahoney v. State of Indiana
• Court: Indiana Supreme Court

180 N.E. 580

203 Ind. 421

Mahoney v. State of Indiana

No. 26,016

Supreme Court of Indiana

March 31, 1932

1. ROBBERY---Defined---Taking Property "from the Person of Another"---Does not Exclude Taking from Immediate Presence of Another.---The words "from the person of another" in the statute defining the offense of "robbery" (2425 Burns Supp. 1929) are not so strictly construed as to exclude the taking of property from the immediate presence of another. p. 424.

2. INDICTMENT AND AFFIDAVIT---Language Used---Not Necessary to Use Words of Statute---Other Words Conveying same Meaning may be Used.---Under the express provisions of 2203 Burns 1926 the words used in the statute to define a public offense need not be strictly pursued in framing an indictment or affidavit charging the crime, but "other words conveying the same meaning may be used." p. 424.

3. ROBBERY---Affidavit Charging Crime---Sufficient Allegation that Property was Taken Forcibly.---An affidavit charging that the defendant did "unlawfully and feloniously rob take and steal certain property by violence and putting in fear" sufficiently alleged that the act of the defendant was performed with force or forcibly. p. 424.

4. ROBBERY---"Automobile Banditry"---Evidence Sufficient to Convict.---Evidence held sufficient to sustain conviction for "automobile banditry" as defined in 3, ch. 54, Acts 1929 (2548 Burns Supp. 1929). p. 424.

5. ROBBERY---"Automobile Banditry"---Instruction as to Conviction for Lesser Offense---Properly Given.---In a prosecution for "automobile banditry" (3, ch. 54, Acts 1929, 2548 Burns Supp. 1929) the court properly instructed the jury that the defendant could not be found guilty of any lesser offense than "automobile banditry," as the Legislature has prescribed that 2312 Burns 1926 does not apply to offenses of that character (6, ch. 54, Acts 1929, 2341.2 Burns Supp 1929). p. 426.

6. ROBBERY---"Automobile Banditry"---Instruction that Violation of Law by Prosecuting Witness was no Defense Properly Given.---In a prosecution for "automobile banditry" (3, ch. 54, Acts 1929, 2548 Burns Supp. 1929), the court properly instructed the jury that the fact that the prosecuting witness was violating the law regarding the keeping of gaming devices was not a defense to the prosecution. p. 427.

7. CRIMINAL LAW---Instruction in Prosecution for "Automobile Banditry"---Held Harmless.---In a prosecution for "automobile banditry" in taking slot machines by putting in fear, an instruction that the grand jury's jurisdiction to institute criminal proceedings for unlawful possession of gaming devices extended back for two years held harmless. p. 427.

8. APPEALS---Instructions---Refusal to Give Requested Instruction---When not Error.---Error cannot be predicated on the court's refusal to give a requested instruction when the subject-matter thereof is fully and properly covered by instructions given. p. 427.

From Fountain Circuit Court; W. N. White, Special Judge.

Tony Mahoney was convicted of "automobile banditry" (§ 2548 Burns Supp. 1929), and he appealed.

Affirmed.

Mark L. Thompson, for appellant.

James M. Ogden, Attorney-General, and Merl M. Wall, Deputy Attorney-General, for the State.

OPINION

Martin, J.

The appellant and three others were charged by affidavit with the crime of automobile banditry (§ 3, ch. 54, Acts 1929, § 2548 Burns Supp. 1929), by having "held up" with firearms the occupants of a roadhouse or filling station in Fountain County and robbed them of two slot machines which appellant and his companions removed and placed in an automobile, which they had at the time on the premises and by the use of which they escaped. Appellant was tried by a jury which returned a verdict of guilty, and judgment was rendered by the court (in compliance with §§ 3, 5 and 6 of the act, §§ 2548, 2341.1, 2341.2 Burns Supp. 1929), sentencing him to imprisonment in the Indiana Reformatory for a term of 15 years.

The alleged errors relied upon for reversal are the overruling of his motions to quash the indictment, in arrest of judgment and for a new trial -- reasons assigned in the latter motion include the giving and refusing to give certain instructions and that the verdict is not sustained by sufficient evidence and is contrary to law.

The appellant contends that the affidavit was not sufficient to charge the crime of automobile banditry, ^[1] for the reason that it did not sufficiently charge the commission of the felony (robbery), which was an essential element thereof. ^[2] He says that robbery is not sufficiently charged because the affidavit does not allege that the property was taken from the person of another, and does not allege that the property was forcibly taken. The affidavit is set out in a footnote. ^[3]

The words "from the person of another" contained in the robbery statute are not so strictly construed as to exclude the taking of property from the immediate presence of the person. "A felonious taking by violence or putting in fear from the presence of the person robbed may constitute the crime of robbery." Rains v. State (1894), 137 Ind. 83, 88, 36 N.E. 532.

"Words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used," § 174, ch. 169, Acts 1905, § 2203 Burns 1926, and the language used in the affidavit ("unlawfully and feloniously rob, take, steal, . . . by violence and putting in fear," etc.) is sufficient to convey the meaning that the act of the appellant was performed with force or forcibly. See Chandler v. State (1895), 141 Ind. 106, 113, 39 N.E. 444, and Craig v. State (1901), 157 Ind. 574, 62 N.E. 5.

The appellant's "condensed recital of the evidence" is neither an adequate nor a fair review of the evidence. It is directed almost solely to the testimony on the question of the ownership and control of the slot machines which were taken from the roadhouse during the holdup. The State in its brief says (and its statement is not controverted in the reply brief):

"The evidence shows that on the evening of Nov. 30, 1930, the appellant together with one Lowell Brier, Jack Mahoney and Earl Chizum went to a filling station in Fountain County in an automobile and after leaving one man in the car, appellant and the others entered the station and walked up to one of the patrons and appellant, Tony Mahoney struck him on the head with a revolver. He then ordered the people in there to line up against the wall, and threatened them with a gun and while he had them placed against the wall, he shot one of the men through the shoulder -- and then robbed the station of three slot machines and loaded them into an automobile and drove away."

Appellant by quoting from the testimony of Winterstein, who operated the roadhouse or filling station, and of Lutz, who executed the affidavit instituting this prosecution and who was an employee of Winterstein, seeks to demonstrate that the evidence was not sufficient to prove that Winterstein or/and Lutz owned or were in possession or control of the slot machines. It is true that both of these witnesses, in their cross-examinations, were evasive as to their connection with the slot machines, but there was sufficient evidence from which the jury could reasonably draw the inference that they were in possession and control of such machines. They...