Radley v. State
| Decision Date | 07 October 1910 |
| Docket Number | 21,671 |
| Citation | 92 N.E. 541,174 Ind. 645 |
| Parties | Radley v. The State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied November 17, 1910.
From Floyd Circuit Court; Harry C. Montgomery, Special Judge.
Prosecution by The State of Indiana against Charles Radley. From a judgment of conviction, defendant appeals.
Affirmed.
H. W Phipps, for appellant.
James Bingham, Attorney-General, W. H. Thompson, A. G. Cavins and E. M. White, for the State.
Appellant was indicted by the grand jury of Floyd county, under § 2264 Burns 1908, Acts 1907 p. 249, § 1, for committing the crime of burglary in said county on July 5, 1909, by breaking into and entering, in the daytime, the dwelling-house of William E. Janes, then and there situated in said county. His plea was "not guilty." There was a trial by jury, and verdict returned finding him guilty as charged in the indictment, and that his age was twenty-six years. Over his motion for a new trial the court rendered judgment on the verdict, that he be imprisoned in the Indiana Reformatory for the indefinite term of not less than ten nor more than twenty years, and that he be disfranchised, etc. From this judgment he appeals, and assigns that the court erred in overruling his motion for a new trial. The errors upon which he relies for reversal of the judgment relate to (1) giving and refusing to give certain instructions; (2) insufficiency of the evidence to support the verdict, and (3) improper conduct of the prosecuting attorney in offering to prove certain facts.
Appellant's counsel contends that the trial court erred in giving instructions two, seven, eight, nine and eleven, and in refusing to give instruction one at the request of appellant. The Attorney-General, however, raises the point that no instruction about which appellant complains is set out in his brief, either in full or in substance, as required by rule twenty-two of this court, and therefore no question in relation thereto is presented for review. With the exception of instructions two, seven and eleven, criticised by appellant's counsel, the contention of the Attorney-General is true. The rule is well settled by repeated decisions of this court, that where appellant's brief fails to set out in full or in substance the instructions about which he complains, no question in regard thereto is presented. Henderson v. Henderson (1906), 165 Ind. 666, 75 N.E. 269, and authorities cited; Myers v. State (1909), 171 Ind. 673, 87 N.E. 141.
The argument by appellant, that instruction two, given to the jury at the request of the State, was misleading and outside of the issues, is not sustained. This charge merely embraced a statement of the crime of grand larceny, as defined by the statute. It was both pertinent to the issues and the evidence in the cause. Instructions seven and eleven contain correct statements of the law pertaining to the crime charged against appellant, and are applicable to the evidence in the case.
Appellant endeavors to base error on the alleged misconduct of the prosecuting attorney in making an offer to prove certain facts, but this alleged error is not available, for the reason that it is not shown by the record that he objected to the act of the prosecuting attorney, that the court made any ruling thereon, or that appellant reserved at the time any exceptions whatever to the matter in question. It does not appear that appellant made any request that the court discharge the jury from further consideration of the cause, or that they be instructed by the court to disregard the statement made by the prosecuting attorney. It is well settled that an exception to the decision of the court must be reserved at the time the ruling is made. Fletcher v. Waring (1894), 137 Ind. 159, 36 N.E. 896; Johnson v. Eberhart (1895), 140 Ind. 210, 39 N.E. 459; State v. Friedley (1898), 151 Ind. 404, 51 N.E. 473; Elliott, App. Proc. §§ 784-786. It is contended by appellant's counsel that the evidence is insufficient in three particulars to sustain the judgment of the lower court: (1) That the ownership of the house alleged to have been entered is not established. (2) That the evidence does not identify appellant as the person who entered the house in question. (3) That the evidence is not sufficient to show that there was any breaking and entry of the house by appellant.
The crime is shown to have been committed in the afternoon of July 5, 1909, and that the house in question was situated in the city of New Albany, Floyd county, Indiana. The indictment charged that it was the dwelling-house of William E. Janes. The evidence discloses that Janes, together with his wife and two children, had occupied the house for three years as a residence, and had the exclusive possession thereof. When testifying as a witness, Janes referred to the house as his house. He was asked in what county and state his house was situated--meaning the house in question--to which interrogation he replied: "Floyd county, Indiana." All through his testimony he claimed to be the owner of the house, and no question was raised or objections made by appellant during the trial that Janes was not the owner thereof. Whether he held title thereto in fee, or merely as a tenant, is not fully shown by the evidence. It was sufficient, however, on the trial, in order to establish the charge in the indictment that the house was the dwelling-house of William E. Janes, to show that the latter had the lawful possession thereof at the time the offense of burglary was committed. As against appellant, it was not essential to show what particular title he held to the premises in controversy. § 2061 Burns 1908, Acts 1905 p. 584, § 190; McCrillis v. State (1879), 69 Ind. 159; 1 Wharton, Crim. Law (10th ed.) § 804 and authorities cited; Kennedy v. State (1882), 81 Ind. 379.
The evidence in the case fully establishes that on the afternoon of July 5, 1909, Janes and his family were absent from home. They were at Silver Hills, a...
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