Miller v. State
| Decision Date | 28 November 1905 |
| Docket Number | No. 20,672.,20,672. |
| Citation | 165 Ind. 566,76 N.E. 245 |
| Parties | MILLER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.
Alois Miller was convicted of receiving stolen goods, and he appeals. Affirmed.
Gilbert & Wood, for appellant. C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.
Appellant was indicted, tried, and convicted of receiving stolen goods, in violation of section 2012, Burns' Ann. St. 1901 (section 1935, Rev. St. 1881; section 1935, Horner's Ann. St. 1901). Appellant's motion to quash the indictment was overruled. The verdict of guilty was returned on the last day of the February term, 1905, of the court below, and on that day appellant's motion for a new trial was filed and overruled, and judgment pronounced upon the verdict. On May 2, 1905, the fourteenth day of the April term, 1905, of the court below, appellant filed a supplemental motion for a new trial, on the ground of newly discovered evidence, supported by affidavits. On the same day the state filed counter affidavits and written objections to the filing and consideration of said supplemental motion for a new trial. Appellant filed a demurrer to said written objections, which was overruled, after which the supplemental motion for a new trial was overruled. Appellant has assigned each of said adverse rulings for error.
Appellant objects to the indictment on the ground that the description of the stolen property alleged to have been received by appellant was too uncertain and indefinite. The part of the indictment necessary to the determination of this question reads as follows: “Did then and there feloniously take, steal, and carry away brass of the value of $25.00 of the personal goods and chattels of,” etc., “and Alois Miller and William Miller did then and there feloniously buy and receive said brass,” etc. It is said in Gillett's Crim. Law (2d Ed.) § 136: In Turner v. State, supra, the property was described as “one book of the value of six dollars, the personal property of Levi W. Welker.” The court held said description sufficient, saying: “The books are full of cases in which it is held that such descriptions as ‘one horse,’ ‘one cow,’ ‘one hog,’ are sufficient, and there is no reason why a different rule should apply here.” It has been held that “one hide,” “one ham,” “six handkerchiefs,” “thirty yards of cloth,” “one coat,” “one piece of cashmere,” “ten yards of brocade silk,” “fifteen yards of brown colored satin,” “four and one half yards of brown silk,” “one pocketbook,” “two horseshoes,” are sufficient description. State v. Dowell, 3 Gill & J. 310; Reg. v. Gallears, 2 C. & K. 981; People v. Nebbs, 1 Moody, 25; Com. v. Campbell, 103 Mass. 436;Harrington v. State, 76 Ind. 112;Dougherty v. State, 20 Ind. 442;Terry v. State, 13 Ind. 70; Gillett's Criminal Law (2d Ed.) § 552; Moore's Criminal Law, pp. 893, 894. Under these authorities the property charged to have been received by appellant was sufficiently described.
To present any question in regard to a variance between the averment of the indictment describing the property, and the proof in the cause, appellant should have made his objection to the admission of such evidence at the proper time during the trial, and in the event of an adverse ruling assigned it as a cause for a new trial. Having failed to do this, appellant cannot present the question here. Bradley v. State (No. 20,650, Nov. term) 75 N. E. 873;Taylor v. State, 130 Ind. 66, 69, 29 N. E. 415;Graves v. State, 121 Ind. 357, 23 N. E. 155;Kruger v. State, 135 Ind. 573, 35 N. E. 1019.
The refusal of the court to give instruction 7, requested by appellant, is assigned as a cause for a new trial. Instructions given or refused in a criminal case can only be made a part of the record by a bill of exceptions. Leverich v. State, 105 Ind. 277, 278, 4 N. E. 852;Stillwell v. State, 155 Ind. 552, 58 N. E. 709;Smith v. State, 154 Ind. 107, 56 N. E. 19. As this has not been done in this case, no question in regard to the refusal of the court to give said instruction is presented by the record.
It is next insisted by appellant that the court erred in permitting the state to prove the larceny of the brass described in the indictment by Thomas Hedges and Charley McKenzie, the persons who stole the same; citing Reilley v. State, 14 Ind. 217. In that case, which was a charge of receiving stolen goods, the trial court had admitted evidence of third parties of the confessions made to them by the alleged thief, the same as if he (the thief) had been on trial for the larceny. This was correctly held erroneous on the ground that the confession of the thief was not admissible against the person charged with the crime of receiving the goods stolen by such thief. In this case, however, the larceny of the brass was proven by the persons who stole the same, and not by third persons to whom they had confessed the larceny, as in the 14 Ind. case. They were competent witnesses to prove the larceny of said property as against the receiver thereof. 24 Am. & Eng. Ency. of Law (2d Ed.) p. 50.
It was assigned as a cause for a new trial that “the court erred in admitting in evidence, over the objection of this defendant, two certain pieces of brass; the pieces of brass not being any part of the brass mentioned in the indictment.” Appellant has not pointed out the page and line of the transcript where the ruling of the evidence complained of may be found. It has been uniformly held that, when this is not done, the court will not search the record to find the same, and will not consider such question. Indiana, etc., R. Co. v. Ditto, 158 Ind. 669, 672, 64 N. E. 222, and cases cited; Sanders v. Scott, 68 Ind. 130, 132;Rout v. Woods, 67 Ind. 319, 326; Ewbank's Manual, § 182, p. 277; Elliott's App. Proc. § 440. We have, however, examined the record, and have not been able to find that two pieces of brass were admitted in evidence over appellant's objection.
It is next insisted by appellant that the court erred in overruling his demurrer to the written objections of the state to his supplemental motion for a new trial. A demurrer to such objections is unknown to our practice, and the action of the court in overruling the same presents no question for our determination. Section 1911, Burns' Ann. St. 1901 (section 1842, Rev. St. 1881; section 1842, Horner's Ann. St. 1901), provides that “the motion for a new trial must be made before the expiration of the term at which the judgment is rendered.” This provision is in regard to motions for a new trial in criminal cases, and it is...
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