Myers v. State

• Decision Date: 23 November 1883
• Docket Number: 11,189
• Citation: 92 Ind. 390
• Parties: Myers v. The State
• Court: Indiana Supreme Court

92 Ind. 390

Myers v. The State

No. 11,189

Supreme Court of Indiana

November 23, 1883

Petition for a Rehearing Overruled Dec. 20, 1883.

From the Criminal Court of Allen County.

The judgment is affirmed, with costs.

H Colerick and W. S. Oppenheim, for appellant.

F. T Hord, Attorney General, and C. M. Dawson, Prosecuting Attorney, for the State.

OPINION

Howk, J.

In this case the indictment against the appellant contained two counts. In the first count he was charged with having unlawfully and feloniously entered an office in the day-time, and with having then and there unlawfully and feloniously attempted to commit the felony of petit larceny. The second count of the indictment charged him with the offence of petit larceny. Upon his plea of not guilty, the appellant was tried by a jury, and a verdict was returned finding him guilty as charged in the second count of the indictment, and assessing his punishment at imprisonment in the State's prison for the term of two years, and a fine in the sum of $ 1, and disfranchisement and incapacity of holding any office of trust or profit for two years. Over his motion for a new trial, the court rendered judgment against him in accordance with the verdict.

The first error complained of in argument by the appellant's counsel is the overruling of the motion to quash the first count of the indictment. This count charges "that on the 6th day of April, A. D. 1883, at the county of Allen and the State of Indiana, Mark J. Myers did then and there, unlawfully and feloniously, in the day-time enter the office of William D. Page there situate, and did then and there, in said office aforesaid, unlawfully and feloniously attempt to commit a felony, to wit, to feloniously steal, take and carry away nine quires of white printing paper, of the value of $ 1 each quire, and of the aggregate value of $ 9, of the personal goods of the said William D. Page, then and therein found and situate in said office of said William D. Page."

The charging part of this count of the indictment, it is conceded, is copied substantially from the affidavit and information in Burrows v. State, 84 Ind. 529. In the case cited the court said: "The offence charged, or intended to be charged, is a new one in this State, having been defined and its punishment prescribed for the first time in the act of April 14th, 1881, 'concerning public offences and their punishment.'" It was there held that the offence charged was defined and its punishment prescribed in section 29 of the act mentioned, being section 1930, R. S. 1881. Appellant's counsel claim that this court erred in thus holding, and that the court ought to have decided that the offence was defined and its punishment prescribed in section 30 of the same act, being section 1931, R. S. 1881. In section 1930 it is provided as follows: "Whoever, in the day-time or night-time, enters any * * * office, * * * * and attempts to commit a felony, shall be imprisoned in the State prison not more than fourteen years nor less than two years, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period." Section 1931 provides as follows: "Whoever, in the day-time, breaks and enters into any * * * * office, * * * * with intent to commit the crime of larceny, shall be imprisoned in the county jail not more than six months nor less than ten days, and fined not exceeding $ 200."

It will be seen that the offence defined in section 1930 is a felony, while the one defined in section 1931 is merely a misdemeanor. Why there should be this difference between the two offences is a question for the Legislature, and not for the courts. We are of the opinion, however, that the appellant is not charged in the first count of the indictment with the commission of the offence defined in section 1931, but that he is clearly charged therein with the offence defined in section 1930. We adhere, therefore, to our decision of this question in Burrows v. State, supra, and hold that the court did not err in refusing to quash the first count of the indictment.

The next error complained of is the overruling of the motion to quash the second count of the indictment. It is conceded by appellant's counsel that this count contains a sufficient charge of petit larceny; but the count further charges that the appellant had been previously indicted, tried and convicted upon a charge of petit larceny in the Wells Circuit Court, in this State, setting out a complete record of such former conviction, with a proper averment as to the appellant's identity with the defendant in such former conviction. It is claimed by counsel that this further charge vitiated the entire second count. This claim can not be sustained. Even if the charge of the former conviction were wholly improper or insufficient, it would have been error to have sustained appellant's motion to quash the entire second count, containing, as it did, a sufficient charge of petit larceny. Upon this point, in Good v. State, 61 Ind. 69, this court said: "It does not follow, that, because the indictment contained an improper charge against the appellant, therefore his motion to quash the entire indictment should have been sustained. The indictment contained a valid, legal and sufficient charge of grand larceny against the appellant, and, therefore, his motion to quash the entire indictment was properly overruled. If, however, he had moved the court to quash only so much of the indictment as charged his former trial and conviction of petit larceny, we have no doubt the court would have sustained his motion, and the decision would have been right and proper. As, however, the appellant's motion, as made, went to the entire indictment, and as it contained, beyond doubt, a valid and sufficient charge of grand larceny, it is clear, we think, that no error was committed by the court in overruling said motion."

In the case at bar the court did not err in overruling appellant's motion to quash the second count of the indictment.

There was no available error in the overruling of appellant's motion to require the prosecuting attorney to elect on which count of the indictment the State would proceed and rely. On their face, it is manifest that the two counts of the indictment were predicated on the same transaction. It is settled by the decisions of this court that the...