Smith v. State

Decision Date13 March 1918
Docket NumberNo. 23323.,23323.
Citation187 Ind. 253,118 N.E. 954
PartiesSMITH v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Jess Smith was convicted of petit larceny, and appeals. Affirmed.

Walter J. Lotz, of Hammond, for appellant. Elmer E. Hastings, of Washington, Ind., and Dale F. Stansbury, of Indianapolis, for the State.

MYERS, J.

Appellant, in the Lake superior court, was charged by affidavit with the offense of grand larceny. He was tried by the jury, and a verdict was returned finding him guilty of petit larceny, and assessing his punishment at imprisonment in the county jail for 30 days, a fine of $25, and disfranchisement for one year.

Appellant's motion for a new trial was overruled, and this ruling is here assigned as error. The only causes in support of the motion and not waived, are that the verdict is not sustained by sufficient evidence and is contrary to law.

This case is submitted to us solely upon the theory that the verdict is contrary to law upon two grounds: (1) Because the affidavit charges that one Samuel Blumenthal was the owner of the property in question, and the evidence shows that he was not the owner nor did he such have such interest in the property stolen as would constitute him a bailee within the purview of the grand larceny statute; (2) that the undisputed evidence shows that the property alleged to have been taken was a gambling device within the meaning of section 2474, Burns' 1914, and known as a punch board, and the alleged jewelry was given as prizes to persons who paid 10 cents and punched a number calling for a prize, and that such property could not be the subject of larceny.

[1] Briefly, there is evidence tending to show on that September 27, 1916, one Samuel Blumenthal was engaged in the saloon business at Indiana Harbor, and in his place of business he had possession of and maintained a punch board and equipment belonging thereto, consisting of watches, razors, pocketknives, etc., on consignment from the Consumer's Cigar Company of Chicago, whereby any of such articles not given out as prizes in settlement for prize numbers were to be returned to the cigar company. The numbers were concealed in a hole in the board, some of which entitled the holder to a prize. The player, by paying 10 cents, had the privilege of punching out a number which indicated the prize he was to receive, or nothing as the case might be. There is also evidence tending to show that on September 27, 1916, appellant walked into the saloon, displayed a constable's badge, demanded and received the punch board and its equipment from the bartender, and took them away with him. There is sharp conflict in the evidence over the identity of the person who took the equipment, but, in view of the evidence disclosed by the record on this subject, the finding of the jury will not be disturbed.

[2][3] As to appellant's first contention, it is true that the affidavit charges that Blumenthal was the owner of the outfit alleged to have been taken by appellant, and the evidence shows that he received the same on consignment, and was in possession of it at the time of its alleged unlawful taking. Under the decisions of this court there was no variance or failure of proof. The evidence of possession is sufficient proof of ownership under the allegation of ownership in the present affidavit. Edson v. State, 148 Ind. 283, 47 N. E. 625;State v. Tillett, 173 Ind. 133, 89 N. E. 589, 140 Am. St. Rep. 246, 20 Ann. Cas. 1262;State v. Bishop, 98 N. C. 773, 4 S. E. 357; Adams v. State, 45 N. J. Law, 448. See People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep 546, note 7a and b.

[4] Appellant is in error as to his...

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7 cases
  • State v. Sorrentino
    • United States
    • Wyoming Supreme Court
    • March 25, 1924
    ...v. State 10 Tex.App. 445; Brown v. State, 222 S.W. 252; an entry to steal whisky is burglary, Ellis v. Com., 217 S.W. 368; Smith v. State, (Ind.) 118 N.E. 954; State May, 20 Ia. 305; Com. v. Smith, 129 Mass. 104; Bales v. State, 3 W.Va. 685. David J. Howell, Attorney General for Respondent.......
  • Buford v. State
    • United States
    • Mississippi Supreme Court
    • February 21, 1927
    ...to law or when illegally sold. The minute, however, the property is used for an unlawful purpose the title vanishes. We cite Smith v. State of Indiana, 118 N.E. 954, L. R. 1918D 688, to the effect that property used for gambling purposes contrary to the statute is a subject of larceny. See,......
  • People v. Otis
    • United States
    • New York Court of Appeals Court of Appeals
    • April 17, 1923
    ...Gray (Mass.) 139;Commonwealth v. Smith, 129 Mass. 104;Ellis v. Commonwealth, 186 Ky. 494, 217 S. W. 368, 11 A. L. R. 1030;Smith v. State, 187 Ind. 253, 118 N. E. 954, L. R. A. 1918D, 688;State v. May, 20 Iowa, 305; Bales v. State, 3 W. Va. 685; State v. Donovan, 108 Wash. 276, 183 Pac. 127.......
  • Commonwealth v. Greenplate
    • United States
    • Pennsylvania Commonwealth Court
    • January 15, 1927
    ...for lawful purposes, have been sustained." Mr. Justice Myers, in delivering the opinion of the Supreme Court of Indiana in Smith v. State, 118 N.E. 954, " It has been held that larceny of gaining checks can be committed, although gaming is illegal (Bales v. State, 3 W.Va. 685), and that it ......
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