Rivers v. State

• Decision Date: 18 February 1896
• Parties: RIVERS v. STATE.
• Court: Indiana Supreme Court

144 Ind. 16

42 N.E. 1021

RIVERS

v.STATE.

Supreme Court of Indiana.

Feb. 18, 1896.

Appeal from circuit court, Greene county; William W. Moffett, Judge.

Charles Rivers was prosecuted by affidavit and information for grand larceny. He was convicted as charged, and from a judgment on the verdict appeals. Affirmed.

Lamb & Beasley, for appellant. Wm. A. Ketcham, Atty. Gen., S. H. Spooner, and Merrill Moores, for the State.

McCABE, J.

The appellant was prosecuted by affidavit and information charging him in the first count thereof with burglary and in the second grand larceny. On motion the state was compelled to elect on which count it would prosecute, and it elected to proceed under the second. No reason has been suggested for this order, nor have we discovered any. The appellant pleaded not guilty. A trial of the issue thus formed resultedin a verdict of guilty of grand larceny, and fixing the punishment at 10 years' imprisonment in the state's prison, a fine of $1,000, and disfranchisement for 10 years. The court rendered judgment against defendant on the verdict over his motion for a new trial. The error assigned calls in question the ruling refusing a new trial, and the sufficiency of the facts stated in the second count of the affidavit and information to constitute a public offense. The only ground relied on in the motion for a new trial is the overruling of appellant's motion for a continuance. But there is no showing in the transcript anywhere that appellant's bill of exceptions was ever filed in the office of the clerk of the trial court, without which it is no part of the record. Armstrong v. Dunn (Ind. Sup.) 41 N. E. 540;Stewart v. State, 113 Ind. 505, 16 N. E. 186;Drake v. State (Ind. Sup.) 41 N. E. 799;Smith v. State (at this term) 42 N. E. 913. Therefore no question is presented as to the ruling refusing a continuance.

The second count in the affidavit and the information is as follows: “State of Indiana, Greene County-ss.: Oscar W. Shryer says that Charles Rivers, J. H. Dowell, Jack Wade, et al., late of the county and state aforesaid, on or about the 3d day of October, A. D. 1894, did then and there, at and in said county, unlawfully and feloniously take, steal, and carry away four thousand dollars in money, and then and there of the value of four thousand dollars, and being then and there the personal goods and property of Marcus H. Shryer and Oscar W. Shryer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” The first objection is that the affidavit and information do not contain the title of the cause and the name of the court, as required by the Criminal Code, Rev. St. 1894, § 1800 (Rev. St. 1881, § 1731). That is required by the section cited, but section 1825, Rev. St. 1894 (section 1756, Rev. St. 1881), provides that: “No indictment or information shall be deemed...