Rokvic v. State
| Decision Date | 03 April 1924 |
| Docket Number | 24,384 |
| Citation | 143 N.E. 357,194 Ind. 450 |
| Parties | Rokvic v. State of Indiana |
| Court | Indiana Supreme Court |
From Vigo Circuit Court; John P. Jeffries, Judge.
Prosecution by the State of Indiana against Mele Rokvic for a violation of the statute defining the crime of "vehicle taking." From a judgment of conviction, the defendant appeals.
Affirmed.
Miller Beeler & Causey, for appellant.
U. S Lesh, Attorney-General, and D. F. Stansbury, for the State.
Appellant was convicted upon the first count of an affidavit which charged in that count a violation of the crime known as vehicle taking as defined by § 2301c Burns' Supp. 1921, Acts 1921 p. 494, and the second count of which charged grand larceny.
The property which the first count charged appellant with taking, without the consent of the owner, was described as three tires of the value of $ 30 each, three rims of the value of $ 3 each, and three tubes of the value of $ 2.50 each, all of the value of more than $ 25 and all forming part of an auto truck which was a vehicle operated by explosive power.
The second count charged the larceny of the same described property at the same time and place, except that this count also included a charge of stealing one butchered calf, in addition to the other property.
Appellant was convicted upon the first count and there being no express finding upon the second count, the result was his acquittal upon this count.
Before the trial, appellant filed a motion asking that the state be required to "separate its counts" for the reason that said affidavit charged two separate and distinct offenses. The court overruled this motion. This was not error. If an affidavit shows upon its face that separate offenses, relating to different transactions, are improperly joined in different counts, the affidavit may be quashed. If it appears from the evidence that two separate offenses relating to different transactions are improperly joined, the court may then require the state to elect as between them.
Different felonies of the same character, growing out of the same transactions, may be charged in separate counts of the same affidavit or indictment, and the state cannot be compelled to separate or elect. Until it affirmatively appears that offenses of a different character or relating to different transactions have been improperly joined, the action of the court with reference thereto is discretionary. McGregor v. State (1860), 16 Ind. 9; Griffith v. State (1871), 36 Ind. 406; Glover v. State (1887), 109 Ind. 391, 10 N.E. 282; Ewbank's Criminal Law, §§ 265, 266.
We know of no practice authorizing such a motion as appellant filed in this case, unless it has the effect of a motion to require the state to elect, but in view of the above authorities, he was not harmed by such ruling.
The two counts showed upon their face that felonies of the same character, relating to the same transaction, were charged in each count. Each charged the felonious taking of the property of the same person at the same time, and each necessarily included the element that the property was taken without the consent of the owner. The only difference being that to sustain the first charge it had to be shown that some of the property described and of the value of § 25 or more was an accessory and forming a part of a vehicle operated by explosive power. One who steals property of this character may be guilty of either one of said crimes.
Of course, to be guilty under the second count, he must have had the intention to deprive the owner of his property, and it would include a taking without the owner's consent; while under the first count, if it was taken without the owner's consent, it would not be material whether the defendant had the intention to deprive him of his property or not. The fact that the same acts may constitute more than one offense of the same character, but one of such offenses may lack some elements that the other requires, is one of the reasons for making the charge in separate counts, and there is no valid objection to such practice so long as the offenses are of the same character and grow out of the same transaction. Furthermore, appellant being found guilty upon only one count, he was not harmed by the overruling of this motion. Reed v. State (1897), 147 Ind. 41, 46 N.E. 135; Myers v. State (1883), 92 Ind. 390.
Appellant challenges the correctness of four separate instructions given by the court, at the request of the state.
In instruction No. 12, the court evidently omitted one word, but the instruction as given could not have misled the jury to the harm of appellant. Said instruction, with the omitted word enclosed in parentheses, is as follows: "While it is the law that every person charged with the commission of a crime is presumed to be innocent until his guilt is established beyond a reasonable doubt, yet, if the evidence is so strong and conclusive as to overcome the presumption of innocence, under the law (it) will avail nothing to the defendant and under such circumstances you should convict." Presuming that the jury was composed of persons of ordinary intelligence, as we must, the quoted instruction would be understood as meaning the same as if the omitted word, or words of similar import, had been inserted. When the meaning is clear, a technical verbal inaccuracy, which does not affect the meaning, will not be sufficient to reverse a cause. Bredenderf v. State (1923), 193 Ind. 675, 141 N.E. 610.
Appellant complains of instruction No. 25. The first objection made to this instruction is that it assumes a theft of the property involved. We do not think the instruction is subject to that fault. It does not assume that there had been a theft of the property in controversy, but only undertakes to state what presumption arises when property recently stolen is found in the possession of a person. The only other objections urged in appellant's Points and Authorities to this instruction are to the effect that it stated the law relating to the charge of the second count, but that the court did not limit it to the charge in this count. An examination of this instruction, in connection with other instructions given relating to the charge contained in the first count, convinces us that the jury would clearly understand it referred to the charge of larceny as charged in count two.
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