Miller v. The State
| Decision Date | 31 March 1896 |
| Docket Number | 17,748 |
| Citation | 43 N.E. 440,144 Ind. 401 |
| Parties | Miller v. The State |
| Court | Indiana Supreme Court |
From the Kosciusko Circuit Court.
The judgment is affirmed.
J. D Widaman and L. W. Royce, for appellant.
W. A Ketcham, Attorney-General, and H. S. Biggs, for State.
The appellant was prosecuted by affidavit and information, for a violation of the provisions of sections 7 and 9 of the act relating to warehousemen and warehouse receipts, etc approved March 25, 1879; Acts 1879, p. 231; sections 8726, 8728, R. S. 1894 (sections 6547, 6549, R. S. 1881).
It is charged in the information that on or about the 30th day of October, 1893, the appellant was a storage merchant and warehouseman in Kosciusko county, and then and there held himself out to the public as a person keeping and operating a storage room and warehouse for receiving in store and caring for wheat and other grain and personal property, and was then and there receiving in store wheat and other grain and personal property from depositors; that one Jonathan Tinkey, on or about said 30th day of October, 1893, in said county, delivered to appellant, and entrusted to him as bailee, in store for the said Tinkey in appellant's storeroom and warehouse, one hundred and twenty-six bushels and twenty pounds of wheat of the value of $ 69.50, the property of the said Tinkey; that the appellant issued and delivered to said Tinkey a storage receipt for said wheat; which receipt the said Tinkey received and still holds; that the appellant, while holding said wheat in store for said Tinkey, and without the written consent of Tinkey, did then and there unlawfully, fraudulently, feloniously, wilfully and purposely, sell, dispose of, ship out and remove beyond the immediate control of him, the appellant, all of said wheat, and did unlawfully, fraudulently, feloniously and purposely convert said wheat to his own use, without the written consent of said Tinkey.
A motion to quash the affidavit and information having been overruled, the appellant entered his plea of not guilty. Whereupon the cause was tried by a jury, who returned a verdict of guilty, assessing as punishment imprisonment in the State's prison for three years, with a fine of $ 250; and over a motion for a new trial judgment was entered upon the verdict.
The overruling of the motion to quash and the motion for a new trial are assigned as errors.
Under their first assignment of error, counsel for appellant say: "In contending that the information in this case is not sufficient to sustain a criminal prosecution, we are aware that we are running counter to the opinion of this court as expressed in the case of the State v. Miller," 140 Ind. 168. "In that case," continue counsel,
We have carefully considered the able argument of counsel, asking us to overrule the case of State v. Miller, supra, but are satisfied that nothing advanced in that argument or shown in the authorities cited casts any doubt upon the correctness of the conclusion there reached. No good purpose would be served by again entering into a detailed discussion of questions there settled.
An inspection of the act of March 25, 1879, here charged to have been violated, makes it evident that the legislature, in passing it, had in mind the protection of the producing classes from losses such as shown in this case. The act is quite distinct in form and purpose from the public warehouse act of March 9, 1875, as amended March 29, 1879. The fact that the compilers of the revised statutes inserted the act of 1879 immediately after that of 1875, does not, of course, make the one amendatory of or supplementary to the other. The two acts were designed for different, though similar, purposes, and are quite independent of each other.
Neither is it true that because it is provided in section 9 of the act under consideration that one who violates any of its provisions "shall be deemed a cheat and swindler, and subject to indictment," therefore the prosecution cannot be by affidavit and information. One guilty of the crime charged against appellant would certainly be "subject to indictment" for the offense committed. But by section 1748, R. S. 1894 (section 1649, R. S. 1881), "all public offenses, except treason and murder," may, in certain cases, be prosecuted by affidavit and information, as well as by indictment.
The section of the statute thus providing for prosecution by affidavit and information in the cases named, was not intended to repeal any law providing for prosecution by indictment, but was intended only, in furtherance of the speedy and better administration of justice, to give another mode of prosecution in such cases. There is, therefore, no conflict between section 9, the penal section of the act now before us, and said section 1748, R. S. 1894 (section 1649, R. S. 1881), providing for prosecution by affidavit and information; and, hence, said section 9 was not repealed by section 300 of the criminal code. (Section 2364, R. S. 1894; section 2216, R. S. 1881.)
Under the assignment of error that the court overruled the motion for a new trial, counsel first contend that the allegations of the information are not sustained by the evidence. The essential allegations of the information are, that appellant was a warehouseman, as described in the act alleged to have been violated; that he received the wheat of the prosecuting witness for storage and gave him the receipt therefor; and that he removed said wheat beyond his immediate control, without the written consent of the holder of said receipt.
We are of opinion that all these allegations are abundantly sustained by the evidence. Indeed, we are unable to see that any of the evidence given is to the contrary.
Counsel contend particularly that the wheat was not given for storage, but was sold to appellant. The receipt given by appellant, and which, by section 2 of [144 Ind. 406] the statute, section 8721, R. S. 1894 (section 6542, R. S. 1881), is made evidence in the action, shows clearly, we think, that the wheat was received by appellant as warehouseman and for storage in his warehouse, as contemplated in the statute. The receipt reads as follows:
Counsel contend that this receipt is not in...
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