Rains v. The State
| Decision Date | 22 February 1894 |
| Docket Number | 17,174 |
| Citation | 36 N.E. 532,137 Ind. 83 |
| Parties | Rains v. The State |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
The judgment is affirmed.
W. A Kittinger, L. M. Schwinn, E. B. Goodykoontz and G. M Ballard, for appellant.
A. G Smith, Attorney General, and B. H. Campbell, for appellee.
The appellant was tried and convicted in the court below, on the following indictment:
"The grand jury, within and for Madison county, and State of Indiana, duly and legally impaneled, charged and sworn to inquire into all felonies and certain misdemeanors, in and for the body of said county of Madison, in the name and by the authority of the State of Indiana, on their oath, do present and charge that Charles Rains and Jasper Riggsby, late of said county, on the day of -----, A. D 1892, at said county and State aforesaid, did then and there unlawfully, feloniously, violently and forcibly make an assault upon one William Adams, and did then and there and thereby feloniously, violently and forcibly, by violence, steal, take and carry away from said William Adams ninety-four dollars and fifty cents in lawful money, of the property of said William Adams, then and there of the value of ninety-four dollars and fifty cents, contrary to the form of the statute, etc."
The errors assigned call in question the action of the trial court in overruling the motion to quash the indictment, and overruling the motion for a new trial.
A charge of larceny is always included in a charge of robbery. The indictment, therefore, should contain all the allegations essential in larceny, with the added matter that makes the larceny robbery. 2 Bish. Crim. Proced., sections 1001, 1002; Hickey v. State, 23 Ind. 21.
The objection to the indictment, as a charge of robbery, is that it does not charge a taking from the person of the prosecuting witness.
It will be unnecessary to decide the question thus raised, if the indictment contains a good charge of larceny. The objection to it, as a charge of larceny, is that it does not charge the money to be lawful money of the United States or any other country.
It is sufficient, under our criminal code, in charges of this kind, to charge the thing taken or stolen to have been money, simply, without specifying any particular coin, note, bill, or currency. 1 Burns' Rev. 1894, section 1819; Lewis v. State, 113 Ind. 59, 14 N.E. 892.
The indictment, therefore, at least contains a good charge of larceny.
The verdict was to the effect that the jury found the defendant guilty as charged, without any other specification to the crime. The judgment on the verdict was as follows:
"It is therefore ordered and adjudged by the court, that the defendant, Charles Rains, be imprisoned in the State prison north for and during the period of two years, and fined in the sum of one dollar, and disfranchised for two years."
The punishment inflicted is within the limits fixed for grand larceny. 1 Burns' Rev. 1894, section 2006.
So we find the charge in the indictment contains a good charge of grand larceny, and the defendant was found guilty of that charge, and the punishment affixed by the verdict and judgment is such as the law authorized for grand larceny; therefore, there was no error in overruling the motion to quash.
In Hickey v. State, supra, being a prosecution for larceny, the evidence proved a clear case of robbery; the conviction for larceny was sustained by this court, on the ground that larceny was included within robbery, and, in proving robbery, the State necessarily proved the smaller offense of larceny.
In the case at bar, the indictment and evidence both, at least, made a case of larceny.
Among the grounds assigned for the motion for a new trial is misconduct of one of the jurors. Such misconduct is attempted to be established by appellant's affidavit, but the affidavit is not brought into the record by a bill of exceptions. It is necessary to prove the alleged misconduct, and when attempted by an affidavit, it must be brought into the record by bill of exceptions. Elbert v. Hoby, 73 Ind. 111; Beck v. State, 72 Ind. 250; McDaniel v. Mattingly, 72 Ind. 349; Elliott's App. Proced., 817.
Therefore, the record presents no question as to the alleged misconduct.
The next ground urged for a new trial is misconduct of an attorney appointed by the court to assist in the prosecution. At the close of the evidence for the defense, and after his counsel had announced, in the presence and hearing of the jury, that said defendant had rested his cause, the assistant prosecutor spoke in a loud tone of voice, loud enough to be heard by the jury, and said: "Ain't you going to examine the defendant?" to which language the defendant's counsel excepted.
He did not ask any relief from the court; he did not ask the court to properly admonish the jury, or to reprimand the attorney. Indeed, from aught that appears in the record, the appellant and his counsel seem to have regarded the remark as having been made in good faith, unless the exception taken indicated the contrary. It is easy to see that such an inquiry might be made in good faith, and, if so made, it would hardly be calculated to injure a defendant who does not testify on his own behalf. It is true the statute forbids that his failure to testify shall be commented on or referred to in argument. 1 Burns' Rev. 1894, section 1867.
The language used was not in argument or in the course of comment on the evidence, nor was it a comment on the defendant's failure to testify. It, therefore, does not come within the provisions of the statute. It is possible that such an inquiry as the one in question might have been made in such a tone and with such a look and gesture as to amount to an evasion of the statute, but nothing of that kind appears in the record; and the presumption being in favor of good faith, we are justified in presuming that the inquiry was made in good faith, for a proper purpose. If the facts were otherwise it was incumbent on the appellant to make it appear affirmatively by the record.
We have often held that the action of the trial court would be presumed to be correct until the record affirmatively shows to the contrary. Lime City, etc., Ass'n v. Black, 136 Ind. 544, 35 N.E. 829, and cases there cited; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N.E. 529; Elliott's App. Proced., section 292.
Complaint is made of the following instruction:
We see no objection to this instruction as a statement of the law in relation to the crime of robbery. Under the circumstances supposed in the instruction the taking would be from the person. The instruction was evidently intended to cover only one element of the crime of robbery, that element being what it takes to constitute a taking from the person.
A felonious taking by violence or putting in fear from the presence of the person robbed may constitute the crime of robbery. Gillett Crim. Law, section 740, and authorities there cited; People v. Glynn, 54 Hun 332, 7 N.Y.S. 555; 21 Am. and Eng. Encyc. of Law, 434.
If it be said that the instruction was inapplicable unless the indictment contains a good charge of robbery, it may be answered that the instruction was harmless, because, as before observed, the crime of larceny is embraced within the crime of robbery, and takes less to constitute it than that of robbery. To constitute larceny it was not necessary to show a taking from the person or the presence of the prosecuting witness.
We therefore, hold that there was no prejudicial error in giving the instruction, so far as that element of the crime is concerned; nor could it harm appellant, treating the indictment as containing nothing more than a charge of larceny. Because,...
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