Rokvic v. State, No. 24384.

Docket NºNo. 24384.
Citation143 N.E. 357, 194 Ind. 450
Case DateApril 03, 1924
CourtSupreme Court of Indiana

194 Ind. 450
143 N.E. 357

ROKVIC
v.
STATE.

No. 24384.

Supreme Court of Indiana.

April 3, 1924.


Appeal from Circuit Court, Vigo County; John P. Jeffries, Judge.

Mele Rokvic was convicted of a violation on the Vehicle Taking Act, and he appeals. Affirmed.

[143 N.E. 358]


Miller, Beeler & Causey, of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and D. F. Stansbury, Deputy Atty. Gen., for the State.


GAUSE, J.

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 section 2301c, Burns' Supp. 1921, and the second count of which charged grand larceny.

[1][2][3][4] 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 transaction, 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 (1886) 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.

[5] 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

[143 N.E. 359]

being found guilty upon only one count, he was not harmed by the overruling of this motion. Reed v. State (1897) 147 Ind. 41,...

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18 practice notes
  • Dunn v. United States, No. 393
    • United States
    • United States Supreme Court
    • 11 Enero 1932
    ...1, 10, 5 S.W.(2d) 355; People v. Edwards, 72 Cal. App. 102, 117, 236 P. 944; Holt v. People (Colo.) 1 P.(2d) 921, 922; Rokvic v. State, 194 Ind. 450, 143 N. E. 357; State v. Brizendine, 114 Kan. 699, 703, 220 P. 174; Lanasa v. State, 109 Md. 602, 609, 71 A. 1058; State v. Daly, 77 Mont. 387......
  • Cunningham v. Hiles, No. 3-977A234
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Marzo 1980
    ...rehearing den. 197 Ind. 654, 151 N.E. 689; Baltimore, Etc. R. Co. v. Sliger (1923), 194 Ind. 442, 141 N.E. 467, pet. for rehearing den. 194 Ind. 450, 143 N.E. 282; Ness v. Board of Commissioners (1912), 178 Ind. 221, 98 N.E. 33, pet. for rehearing den. 178 Ind. 232, 98 N.E. 1002; Meeks v. S......
  • Elliott v. State, No. 4-1081A160
    • United States
    • Indiana Court of Appeals of Indiana
    • 7 Julio 1983
    ...instruct on a necessary element--that the taking must be without the owner's consent. Our supreme court said: "In Rokvic v. State, (1924), 194 Ind. 450, 143 N.E. 357, 359, in which the appellant was charged with vehicle taking, this Page 1065 court said: 'It is next urged that it [court's i......
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Agosto 1978
    ...L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion applies until it affirmatively appears that offenses of a different character or relating to differen......
  • Request a trial to view additional results
18 cases
  • Dunn v. United States, No. 393
    • United States
    • United States Supreme Court
    • 11 Enero 1932
    ...1, 10, 5 S.W.(2d) 355; People v. Edwards, 72 Cal. App. 102, 117, 236 P. 944; Holt v. People (Colo.) 1 P.(2d) 921, 922; Rokvic v. State, 194 Ind. 450, 143 N. E. 357; State v. Brizendine, 114 Kan. 699, 703, 220 P. 174; Lanasa v. State, 109 Md. 602, 609, 71 A. 1058; State v. Daly, 77 Mont. 387......
  • Cunningham v. Hiles, No. 3-977A234
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Marzo 1980
    ...rehearing den. 197 Ind. 654, 151 N.E. 689; Baltimore, Etc. R. Co. v. Sliger (1923), 194 Ind. 442, 141 N.E. 467, pet. for rehearing den. 194 Ind. 450, 143 N.E. 282; Ness v. Board of Commissioners (1912), 178 Ind. 221, 98 N.E. 33, pet. for rehearing den. 178 Ind. 232, 98 N.E. 1002; Meeks v. S......
  • Elliott v. State, No. 4-1081A160
    • United States
    • Indiana Court of Appeals of Indiana
    • 7 Julio 1983
    ...instruct on a necessary element--that the taking must be without the owner's consent. Our supreme court said: "In Rokvic v. State, (1924), 194 Ind. 450, 143 N.E. 357, 359, in which the appellant was charged with vehicle taking, this Page 1065 court said: 'It is next urged that it [court's i......
  • Vaughn v. State, No. 876S236
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Agosto 1978
    ...L.Ed. 208; Dewey v. State (1976), 264 Ind. 403, 345 N.E.2d 842; Lee v. State (1938), 213 Ind. 352, 12 N.E.2d 949; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357. This rule of discretion applies until it affirmatively appears that offenses of a different character or relating to differen......
  • Request a trial to view additional results

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