Stillwell v. State

• Decision Date: 27 November 1900
• Docket Number: 19,398
• Parties: Stillwell v. The State
• Court: Indiana Supreme Court

58 N.E. 709

155 Ind. 552

Stillwell v. The State

No. 19,398

Supreme Court of Indiana

November 27, 1900

From the Jackson Circuit Court.

Reversed.

John L Shrum, for appellant.

W. L Taylor, Attorney-General, C. C. Hadley and Merrill Moores for State.

Jordan J. Monks, J., was absent.

OPINION

Jordan, J.

Appellant was charged with having on August 5, 1899, at the county of Jackson, State of Indiana, feloniously taken and stolen a certain horse and buggy of the value of $ 150, the same being the property of one Allen S. Crane. He was tried by a jury and convicted of the offense of grand larceny as charged, and over his motion for a new trial was sentenced by the court to be imprisoned in the Indiana State prison for the period of from one to fourteen years and to be fined in the sum of $ 1 and disfranchised for the period of one year. From this judgment he appeals to this court and assigns as error the overruling of his motion for a new trial. Two questions are presented. (1) The alleged error of the trial court in giving certain instructions; (2) that the evidence is not sufficient to sustain the verdict of the jury. The Attorney-General as the representative of the State, in his brief filed in this appeal, raises the question that the instructions are not in the record for the reason that they have not been made a part thereof by a bill of exceptions. This the record discloses to be true and we therefore concur in this contention of counsel. That instructions in a criminal case can only be made a part of the record by means of a bill of exceptions, has been so frequently decided by this court, and the rule is so well recognized by the bar, that the citation of authorities in support thereof would be useless. At the very threshold, in the examination of the evidence, we are confronted with the concession of the learned Attorney-General to the effect that under the evidence the appellant ought not to have been convicted of the crime of larceny. In closing his brief he says "Believing as I do that the evidence is insufficient to sustain the verdict, I cannot conscientiously ask the court to affirm the judgment of the court below." This frank admission upon the part of the State's chief legal representative, is certainly to be commended, for it is not his duty in the appeal of a criminal cause to this court, to endeavor to uphold the judgment of the lower court when he is satisfied that such judgment is impressed with reversible error. We have fully examined and considered all of the evidence give in this prosecution on the trial in the lower court and the material part thereof is substantially as follows: Appellant is a man forty-nine years of age and prior to the time of his arrest on the charge in question he was engaged in life insurance business for the John Hancock Life Insurance Company. He would travel through the country and solicit life insurance from persons, and also endeavor to secure loans of money for persons from the company which he represented. About a year before the time he obtained the horse and buggy, alleged to have been stolen, he had been at Seymour, Jackson county, Indiana, and had made the acquaintance of one John Ridlin, who was an employe at that time in the livery stable of a Mr. Crane in that city. In the latter part of July, 1899, appellant returned to Seymour for the purpose of soliciting insurance through the country. He went to Crane's livery stable and there met Mr. Ridlin who was still in the employ of Crane at his stable. He gave Ridlin his business card and asked if he remembered him and Ridlin replied that he did. On that occasion appellant hired of Ridlin a horse and buggy belonging to Crane's stable and drove into the country. Prior to August 5, 1899, as the evidence shows, he hired a horse and buggy from the same stable some five or six different times and made trips in the buggy out into the country. On Thursday evening, August 3, 1899, he seems to have engaged a horse and buggy at this stable and directed that the conveyance be sent around on Saturday morning, August 5th, at 8 o'clock to the hotel in Seymour where he was stopping. Ridlin took the horse and buggy so engaged by appellant to the hotel upon the morning in question. Appellant told him at that time to have the bill made out for the amount which he owed for livery hire and when he returned in the evening of that day he would pay it. Ridlin turned the horse and buggy over to appellant and he started to drive to Cortland, a small town about five or six miles from Seymour, and was also intending to see some persons at Freetown and Surprise. On the road to Cortland he met Dr. Whitted, whom he was intending to see at Cortland. He and Whitted talked over the business of life insurance and he explained to the doctor the plans of his company for which he was soliciting insurance. In this conversation he inquired of Whitted as to the best road to Bloomington in Monroe county, a county which is adjacent to that of Jackson. In this conversation appellant incidentally told Whitted that the horse and buggy belonged to him. After leaving Dr. Whitted he drove on to Surprise, and at this latter town he received information that the persons he desired to see at Freetown were not at home. After leaving the town of Surprise, and when near Freetown, he wrote and mailed a letter to Mr. Crane, the owner of the horse and buggy, informing him that in order to complete his business he would be compelled to remain over Sunday, and would not return to Seymour until Monday evening. This letter was received by Crane in due course of the mail, and was introduced in evidence at the trial by the State. Appellant when near the town of Kurtz on the road leading to Bloomington met a man with whom he conversed in regard to life insurance, and inquired the road to Maumee, saying he wanted to see a Mr. Hoover who resided there. He stopped at this latter town and had a talk with Hoover in regard to his taking life insurance, and informed Hoover that he was going to Bloomington. After leaving Maumee he went on to Bloomington reaching there some time in the evening of August 5th. He stopped at the Gentry hotel, the leading hotel in that city, and registered his true name on the hotel register, and placed the horse in a livery stable. Appellant was acquainted at Ellettsville with a Mr. Fryhofer, a banker and the cashier of the Ellettsville bank. This latter town is situated on the Monon railroad and is about six or seven miles from Bloomington and about forty miles from Seymour. Appellant had previously sold to Fryhofer's bank some notes and had transacted other business with the same bank. After reaching Bloomington he telephoned to Fryhofer that he was at the latter place and he was requested by Fryhofer to come over to Ellettsville....