Seymour v. State

• Decision Date: 11 December 1860
• Citation: 15 Ind. 288
• Parties: Seymour v. The State
• Court: Indiana Supreme Court

15 Ind. 288

Seymour v. The State

Supreme Court of Indiana

December 11, 1860

APPEAL from the Marion Circuit Court.

The judgment is affirmed, with costs.

A. L Roache, for appellant.

W. P Fishback, for the State.

OPINION

Perkins, J.

This was an indictment charging Seymour and two others, in one count, with robbing, and in another, with stealing over $ 5 from one Washington Pettigrew. The jury, upon the separate trial of Seymour, found him guilty of robbery, and fixed his punishment at two years in the State prison. Sentence passed.

On appeal to this Court, two errors are relied on for a reversal of the judgment:

1. That the Court adjourned during the term, before the defendant was tried, for a space of more than three days.

This objection is answered by Redwine v. The State, post, 293.

We take it, that at common law, a Court would have power to adjourn, for cause, for a longer space, in term, than three days at a time; and where such adjournment appeared to have been made, it would be presumed, the contrary not being shown, that it was made for sufficient cause. And were it made without sufficient cause, it would not, we take it, vitiate subsequent proceedings, but might be ground of accusation against the judge making it. We think our present statute, providing for a close of the term on three days' absence of the judge, does not meet a case like the present; but rather, one where the judge is absent without an adjournment, and his whereabouts or intentions being unknown, it is inferred he has abandoned his Court for the term.

2. It is claimed that the defendant is proved guilty of larceny, and, hence, was erroneously convicted of robbery.

That the defendant got the money of Pettigrew is clear enough. That the punishment inflicted is the lowest that could have been put upon him if the jury had placed the conviction upon the count for larceny, is equally clear; and that the jury might have found grand larceny instead of robbery, we admit. But were the jury not authorized, by the evidence, to conclude that the money was taken through violence, or force? If so, the conviction should be sustained. Our code enacts that, "Every person who shall forcibly and feloniously take from the person of another any article of value by violence, or putting in fear, shall be deemed guilty of robbery." 2 R. S., § 18, p. 402.

"The words of the definition of the crime, are in the alternative, violence or putting in fear; and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery." U.S. Cr. Law, 458; 3 Arch. Cr. Pl. by Wat. 417, and 418.

If a man, without touching another, threaten to shoot him if he does not give up his money, and it is given up, the money is obtained by fear; but if he seizes him, throws him down, and takes from him his money, it is obtained by violence, where perhaps there is no fear.

In the case at bar, a valuable thing, viz.: $ 50 in money, was taken feloniously, that is, with intent to defraud the owner of it and convert it to the use of the taker;--was taken from the person of the owner, and nothing remains to fill the definition of robbery but the force,...