Smith v. State

Decision Date24 January 1884
Docket Number11,387
Citation93 Ind. 67
PartiesSmith v. The State
CourtIndiana Supreme Court

From the Elkhart Circuit Court.

The judgment is reversed, and the cause remanded for further proceedings.

H. C Dodge, for appellant.

F. T Hord, Attorney General, W. B. Hord, F. D. Merritt Prosecuting Attorney, and W. J. Davis, for the State.


Niblack, J.

This was a prosecution against Edward Markett and George S. Smith upon affidavit and information, under section 2139, R. S. 1881. See also section 1929. The affidavit charged these persons with having knowingly and feloniously united, combined and conspired with each other for the purpose of then and there feloniously, in the night time, breaking and entering the dwelling-house of one Herman Zimmerman, then and there situate, "with the intent, then and there, to steal, take and carry away the personal goods and chattels of said Herman Zimmerman, then and there situate, to wit, money, the particular coin, notes, bills or currency, and the value of which is unknown to this affiant."

The information followed the affidavit in its description of the offence intended to be charged.

The defendants moved to quash both the affidavit and information, but their motion was not sustained as to either one of those pleadings.

The defendants then severed in their defences, and, Smith being first placed upon trial, a jury found him guilty as charged, fixing his punishment at a fine of $ 25 and imprisonment in the State's prison for the term of three years, and judgment followed upon the verdict.

The first question made upon this appeal is upon the alleged insufficiency of the affidavit, and the objection urged to the affidavit is its failure to charge that the intention of the defendants was to feloniously steal, take and carry away the personal goods and chattels of Zimmerman.

The word steal has several shades of meaning, and its precise meaning in each particular case is made to depend either upon the qualifying words accompanying it, or the connection in which it is used. Every wrongful and even clandestine taking of the property of another does not necessarily constitute a larceny. To make such a taking larceny, it must also be felonious; that is to say intentional, perfidious, without the claim of right, and in utter disregard of the rights of the owner, or animo furandi, as some of the text-writers express it. This distinction had its origin in the common law, and has been perpetuated by all of the statutes of this State defining the crime of...

To continue reading

Request your trial
12 cases
  • Williams v. State
    • United States
    • Indiana Supreme Court
    • May 9, 1919
    ... ... felony with the same particularity as though the accused was ... to be tried for the felony alone. Allen v ... State (1914), 183 Ind. 37, 45, 107 N.E. 471; ... Green v. State (1901), 157 Ind. 101, 60 ... N.E. 941; Barnhart v. State (1899), 154 ... Ind. 177, 56 N.E. 212; Smith v. State ... (1884), 93 Ind. 67; Woodsmall v. State ... (1913), 179 Ind. 697, 102 N.E. 130 ...          Our ... Criminal Code, § 2065 Burns 1914, § 194, Acts 1905 ... p. 584, specifies the grounds or reasons proper to be ... assigned in support of a motion to quash an ... ...
  • Williams v. State
    • United States
    • Indiana Supreme Court
    • May 9, 1919
    ...v. State, 183 Ind. 37, 45, 107 N. E. 471;Green v. State, 157 Ind. 101, 60 N. E. 941;Barnhart v. State, 154 Ind. 177, 56 N. E. 212;Smith v. State, 93 Ind. 67;Woodsmall v. State, 179 Ind. 697, 102 N. E. 130. [2][3] Our Criminal Code, section 2065, Burns 1914, specifies the grounds or reasons ......
  • Musgrave v. State
    • United States
    • Indiana Supreme Court
    • December 22, 1892
    ...of their conclusion that the particular felony which it was the purpose of the conspirators to commit must be sufficiently charged. Smith v. State, 93 Ind. 67; Landringham v. State, 49 Ind. State v. McKinstry, 50 Ind. 465; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. But the conc......
  • Hinshaw v. State
    • United States
    • Indiana Supreme Court
    • March 13, 1919
    ...the defendant were on trial for that felony. Landringham v. State (1874), 49 Ind. 186; Scudder v. State (1878), 62 Ind. 13; Smith v. State (1884), 93 Ind. 67; Green v. State (1901), 157 Ind. 101, N.E. 941; Eacock v. State (1907), 169 Ind. 488, 82 N.E. 1039; Woodsmall v. State (1913), 179 In......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT