Shears v. The State

Decision Date17 February 1897
Docket Number17,946
Citation46 N.E. 331,147 Ind. 51
PartiesShears v. The State
CourtIndiana Supreme Court

From the Henry Circuit Court.


James Brown, and William A. Brown, for appellant.

William A. Ketcham, Attorney-General, and Frank E. Beach, for State.


McCabe, J.

The appellant was prosecuted upon affidavit of James Donnelly and information filed, charging him and Anthony Shears with the larceny of certain clothing of the value of $ 25.00. The circuit court overruled appellant's motion to quash the information. On the trial, the appellant was found guilty by the jury, fixing his punishment at a fine of $ 20.00 imprisonment in the State prison for two years disfranchisement, and incapacity to hold office for three years. Judgment was rendered on the verdict, the court having previously overruled appellant's motion for a new trial. The assignment of errors calls in question the rulings above mentioned. The only error insisted upon in appellant's brief, is the action of the court in overruling his motion for a new trial. The other errors assigned are, therefore, deemed waived. The evidence was conflicting as to appellant's guilt. The prosecuting witness, Donnelly, testified that he and Tony Shears, Arthur Councellor, and appellant, went to the depot and stole some clothing, and hauled them in Arthur Councellor's wagon to the house of the latter and put them up stairs in said Councellor's house; that Councellor's wife was present at her home and saw them. He, Donnelly, admitted that he had before that time been stealing, in company with others, and had turned State's evidence against them. He also testified that he afterwards saw appellant wearing one of the stolen coats. This was contradicted by outside witnesses. The prosecuting witness was the only witness who testified to appellant's participation in the larceny. Appellant testified that he was not among those who stole the goods in question, and knew nothing of the larceny. The wife of Councellor testified that the goods were brought to her house by the prosecuting witness and her husband, but that appellant was not there at all. Arthur Councellor also testified to his own guilt, but that appellant had nothing to do with the larceny. He also denied that he had any wagon or vehicle whatever at the time. Appellant also proved by several witnesses his previous good character for honesty and integrity. The case, therefore, stands on the evidence of the accomplice, Donnelly, alone, outside of some circumstantial evidence as to the appellant's participation in the larceny, against appellant's testimony, and the other two witnesses. We are not asked to reverse the judgment on the weight of the evidence, as we could not if even we were so asked. Deal v. State, 140 Ind. 354, 39 N.E. 930, and authorities there cited. But we are asked to reverse because of alleged error of law occurring at the trial of said cause. The appellant, on cross-examination by the State's attorney, had been asked, over appellant's objection, if he was not in the habit of stealing a little, to which he answered, "No, sir," and then the question, "Never?" over objection, to which he answered in the negative. Then he was asked, over objection, the question: "Didn't you and Tony break into the Arcade saloon here some time ago and take out of there considerable property?" There was no ruling on the objection. Then the question: "Among the property was some tobacco?" Objection again and no ruling, but he answered, "No, sir." "Q. I will ask you, if you are not selling, to your neighbors down there, tobacco?" This question was objected to on the ground that it was not a cross-examination, but the court overruled the objection and the appellant answered, "No, sir." There were other questions and answers, over objections of the same character, but they were not made a ground for the motion for a new trial. If these questions were asked for the purpose of proving by the answers that appellant was guilty of the crimes indicated thereby, then there can be no question that the court erred in overruling the objections thereto. It was not competent to prove by any witness, or evidence, that appellant had been guilty of such other crimes, for the purpose of authorizing an inference that appellant was guilty of the particular larceny charged against him. There is a class of offenses in which, from the nature of the offense itself, the necessity and propriety of this species of evidence is recognized by the courts. For instance, in cases of conspiracy, uttering forged instruments and counterfeit coin or money, and receiving stolen goods. In these cases, and others perhaps, the act itself which is the subject of inquiry is almost always of an equivocal kind and from which the animus can not, as in other crimes, be presumed, and almost the only evidence which could be adduced to show the guilt of the prisoner would be his conduct on other occasions.

Wherever the intent with which an alleged offense was committed is equivocal, and such intent becomes an issue at the trial, proof of other similar offenses within certain reasonable limits, is admissible as tending to throw light upon the intentions of the accused in doing the act complained of; but where from the...

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