State v. Dilley
| Decision Date | 14 April 1887 |
| Parties | STATE v. DILLEY and another. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county.
Tilmon Ford and Geo. H. Burnett, for appellants.
N.B Knight and Geo. W. Belt, Dist. Atty., for respondent.
The appellants and one George Simmons were indicted jointly in the said circuit court for the crime of assault and robbery being armed with a dangerous weapon. They all pleaded not guilty, and on the trial the appellants were convicted, and said Simmons was acquitted. From the judgment of conviction entered thereon this appeal was taken, and brought here. The indictment reads as follows: "The said Nelson Dilley George Simmons, and Henry Johns, on the twenty-first day of August, 1886, in the county of Marion and state of Oregon then and there being armed with a dangerous weapon, to-wit, a pistol loaded with powder and ball, did then and there feloniously commit an assault upon one Ah Sing, with intent if resisted, to kill or wound the said Ah Sing, and then and there feloniously took three twenty-dollar gold pieces and one ten-dollar gold piece, of the current coin of the United States of America, from the person of said Ah Sing, and against his will."
The following is the section of the statute under which the indictment is drawn:
The indictment follows form No. 10 in the appendix to the Criminal Code, except where it enlarges upon that form, by naming the kind of dangerous weapon used.
On the trial, to support the issues on the part of the state, the prosecution offered testimony tending to show that certain horse tracks were found in the vicinity of the scene of the alleged robbery, and were tracked in the direction of where the defendants claim to have been stopping at the time; and also tending to show that a brown horse, belonging to one of the defendants, made tracks similar to those found near the scene of the robbery, and that said horse was shod with shoes upon the fore feet which had certain peculiarities; and, further, that two witnesses for the prosecution examined a certain roan horse, belonging to said defendant, and all other horses found upon the premises where the defendants were stopping, and found none except the brown horse that made tracks similar to those found near the scene of the robbery; that said examination was made on Sunday, following the Saturday morning on which the robbery was alleged to have been committed; and that said defendants were not present, but were confined in jail at the time. After the prosecution rested, the defendants offered testimony tending to show that Simmons, one of the defendants, in the afternoon before the robbery, brought said roan horse from near the place where the robbery was committed, over a part of the way where these tracks were found, and tending to show that the roan horse was at the time shod, and made tracks similar to the brown horse; and that said defendant Simmons had been harvesting at George B. Miller's, where the robbery was committed, and that the tracks of said roan horse were made when said Simmons returned from said harvesting on said afternoon. After the defendants rested, the prosecution offered testimony tending to show that said Simmons had stated that said roan horse was not shod at the time of the robbery, and thereupon recalled the two witnesses who had examined the roan horse on the Sunday referred to, Miller and Croisan, who both swore that said roan horse was not shod at that time, and the prosecution then rested. The defendants then offered as a witness Orville Hubbard, to prove that said roan horse was shod on said Sunday when said horse's feet were examined; but the prosecution objected to the introduction of such evidence, claiming that the same should have been introduced by the defense on examination in chief, and the court sustained the objection, and the defendants excepted. The defendants, by their attorneys, still offering this testimony, offered to prove that themselves and their clients had only come into possession of the fact that the witness Hubbard would so testify since the testimony on that subject was offered by the prosecution in rebuttal as aforesaid, and that the defense was taken by surprise at the said testimony of the prosecution; but the court still sustained the objection, and the defendants duly excepted to said ruling as an abuse of the court's discretion.
The appellants' counsel have alleged a number of grounds of error in the judgment of the court below, which we shall not notice, as we regard them entirely untenable. The main ones are that the indictment is defective in not alleging that the money charged to have been taken was the property of another, and that the court erred in not allowing them to call said Orville Hubbard as above mentioned. The indictment at common law would have been defective. It would have been necessary under that system to have averred specially to whom the money belonged. The fact that it might have belonged to the robber, and not to the person robbed, had to be negatived. The presumption was that the person having possession of it owned it, but that did not answer the nicety of the law, as it then existed. It had to be affirmatively alleged that it was the property of some one aside from the person who forcibly compelled its surrender to himself. But our statute has dispensed with the necessity of so useless a requirement. It has provided, in express terms, what shall be a sufficient statement in an indictment for robbery, being armed with a dangerous weapon. Section 71, Crim.Code.
The appellants' counsel lay a good deal of stress on the qualifying clause in said section 533, Crim.Code...
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State v. Mason
...State v. Brill, 21 Idaho 269, 121 P. 79; Owen v. Commonwealth (Ky.), 76 S.W. 3; Wilson v. State, 28 Okl.Cr. 102, 228 P. 1108; State v. Dilley, 15 Or. 70, 13 P. 648; and Clemons v. State, 92 Tenn. 282, 21 S.W. Clearly, this language is sufficient to inform the defendant of the charge against......
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State v. Parr
...taken was that of the person who was assaulted; and this averment, though not required when the form prescribed is used ( State v. Dilley, 15 Or. 70, 13 P. 648; State v. Eddy, 46 Or. 625, 81 P. 941, 82 P. appears in the indictment herein. The language employed in an indictment need not corr......
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State v. Eddy
... ... State v. Dodson, 4 Or. 64; State v ... Spencer, 6 Or. 152; State v. Wintzingerode, 9 ... Or. 153; State v. Ah Lee, 18 Or. 540, 23 P. 424; ... State v. Wright, 19 Or. 258, 24 P. 229. In State ... v. Dilley, 15 Or. 70, 13 P. 648, the question now ... presented was decided adversely to appellant's ... contention; the court holding that, in an indictment for ... taking money by force from the person of another, it was not ... necessary, under our statute, to allege that the money ... ...
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State v. McCarthy
...it is not necessary, under our statute, to allege that the money taken was the property of another than the defendant: State v. Dilley, 15 Or. 70 (13 P. 648); State v. Eddy, 46 Or. 625 (81 P. 941, 82 P. 2. The reason for applying a different rule in this state upon this question than that w......