Reinhold v. The State
| Decision Date | 19 February 1892 |
| Docket Number | 16,348 |
| Citation | 30 N.E. 306,130 Ind. 467 |
| Parties | Reinhold v. The State |
| Court | Indiana Supreme Court |
From the Marion Criminal Court.
Judgment affirmed.
J. M Bailey and W. Irvin, for appellant.
A. G Smith, Attorney General, J. W. Holtzman, Prosecuting Attorney, J. S. Duncan and C. W. Smith, for the State.
The appellant and Harry Horton were jointly indicted for conspiracy. They were charged with having conspired, confederated and agreed with each other to commit burglary, with the intent to steal, take, and carry away the personal property of Hilton U. Brown.
The indictment was not defective for failing to state the kind or value of the goods intended to be stolen. Hunter v. State, 29 Ind. 80; Short v. State, 63 Ind. 376; Buntin v. State, 68 Ind. 38.
The defendant filed his affidavit and motion for a change of venue from the county. In opposition to this, the State filed the affidavits of a number of citizens of the county, stating that there was no excitement or prejudice against him, and that in their opinion he could have a fair and impartial trial in Marion county. The court overruled the motion.
This is a matter very much within the discretion of the trial court. We see nothing in the showing made that indicates an abuse of that discretion. Section 1771, R. S. 1881; Spittorff v. State, 108 Ind. 171, 8 N.E. 911; Merrick v. State, 63 Ind. 327; Fahnestock v. State, 23 Ind. 231.
Objection is made to the ruling of the court in permitting Philip Winklihouse, a witness for the State, to testify that on one occasion he went to the appellant's office with and at the request of Harry Horton.
The evidence is not in the record, and we are not informed what occurred at the appellant's office on the occasion referred to. Standing alone, the evidence shows little more than an acquaintance between the accused and Horton. This was admissible. The fact that the parties charged with a conspiracy are acquainted with each other is a circumstance, slight it may be, that the jury may consider with facts proven. A conspiracy to commit crime is not likely to exist between strangers. If the fact of the acquaintance of the accused with Horton was an immaterial one, and had no bearing upon the question in issue, the appellant was not injured by the evidence.
Hilton U. Brown, the owner or occupant of the dwelling-house, the burglary of which was charged to have been the object of the conspiracy, testified that he carried a gold watch. The defendant moved the court to withdraw this testimony from the jury, but his motion was overruled.
The record informs us that the State proposed to show in this connection that the watch was there, and could have been taken.
The court suggested that the evidence would not hurt either of the parties very much.
We are of the opinion that the remark of the court was pertinent. The evidence, if in the record, might show that this testimony was important to the prosecution or injurious to the accused. In the absence of the evidence it appears to be simply harmless.
The court did not err in permitting the State to prove by Frank Thorn that, prior to the conspiracy charged, the accused, speaking of Horton, made a statement, which, taken in connection with the explanation and evidence offered by the State, tended to show that the accused was seeking an opportunity to meet Horton in order to make an arrangement with him to commit burglaries.
The objection urged to the evidence is that it does not show that the proposed arrangement was to commit the specific burglary which was the object of the conspiracy charged.
This evidence was admissible as tending to show a willingness on the part of the accused to enter into a conspiracy with Horton for the commission of the crime of burglary. Williams v. State, 47 Ind. 568; Walton v. State, 88 Ind. 9.
Complaint is made of the ruling of the court in refusing to sustain the defendant's motion to strike out this question propounded to Otto Smith:
"What conversation, if any, did you have with Horton after that was done about going any where with him that night to do another job?"
This question could not have injured the accused; if he suffered injury it must have been because of the answer to the question. If the question was answered, it is wholly omitted from the bill of exceptions, and we are therefore unable to determine its nature or effect.
The next reason urged for a new trial relates to language used by the court, in the presence of the jury, in ruling upon the objection to the foregoing question, and is as follows:
"In the opinion of the court sufficient evidence has been introduced to show that a conspiracy existed between Reinhold and Horton to do the offence charged in the indictment, and, upon the theory that Horton is one of the conspirators, his declarations in furtherance of the conspiracy and carrying out the unlawful and felonious design in the indictment, it is admissible."
In making this statement in the presence of the jury we are of the opinion that the court, unguardedly, used language in excess of that which was proper, and which was well calculated to influence the minds of the jury to the prejudice of the accused. The ultimate fact, upon which the jury was to pass, was the guilt or innocence of the accused of having conspired with Horton to do the offence charged in the indictment. The court in this statement says, without qualification, that in his opinion sufficient evidence had been introduced to show that such a conspiracy existed.
It was proper for the court to say, if such was the fact, that a prima facie showing of the existence of the conspiracy had been made; or that in his opinion such a showing had been made as to permit the declarations of Horton to be given in evidence. Gillett Crim. Law., section 310. What the court did say went far beyond this, and, standing alone, would be reversible error.
It is, ordinarily, not necessary for the court to instruct the jury to disregard the reasons given by the court, in their hearing, in the deciding of a question which belongs exclusively to the court. Grubb v. State, 117 Ind. 277, 20 N.E. 257.
We are satisfied that whatever error the court may have committed in expressing an opinion in the presence of the jury, was fully cured by its fourth instruction, in which, in addition to explaining the circumstances under which the remark was made, and stating that it was not the intention of the court to express an opinion for or against the accused, the court expressly withdraws such remark from their consideration, and directs them to give it no further consideration.
We are...
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