Taylor v. State
| Decision Date | 15 December 1891 |
| Docket Number | 15,986 |
| Citation | 29 N.E. 415,130 Ind. 66 |
| Parties | Taylor v. The State |
| Court | Indiana Supreme Court |
From the Spencer Circuit Court.
Judgment reversed, with directions to grant a new trial.
H. M Logsdon, W. C. Mason, A. J. Payton, L. B. Osborne, for appellant.
A. G Smith, Attorney General, and R. M. Johnson, Prosecuting Attorney, for the State.
The appellant was indicted, tried, and convicted, in the Spencer Circuit Court, upon a charge of robbery. He appeals to this court, and assigns as error the overruling of his motion for a new trial.
It is insisted that the evidence does not support the verdict of the jury finding the appellant guilty of the charge against him.
On the evening of the 9th of April, 1890, soon after dark, a short distance from the town of Rockport, David Axton, while returning home from the town in his wagon, was attacked and robbed, the person attacking him taking from his person the sum of eighty dollars. The evidence connecting the appellant with the robbery is circumstantial, and somewhat conflicting, but it can not be said there is no evidence connecting him with the crime. We can not disturb the verdict on the evidence.
The indictment charges that the money taken at the time of the robbery was "lawful money of the United States." It is contended by counsel for the appellant that, for anything appearing from the evidence in the cause, the money taken may have been National Bank notes, and that such proof does not sustain the charge that it was "lawful money of the United States."
Section 1750, R. S. 1881, provides that "In every indictment or information * * * in which it is necessary to make an averment as to any money, or bank bills, or notes, United States treasury notes, postal and fractional currency or other bills, or notes issued by any lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money, bills, notes, or currency simply as money, without specifying any particular coin, note, bill, or currency; and such allegations shall be sustained by proof of any amount of coin or of any such note, bill, or currency, although the particular species of coin of which such amount was composed, or the particular nature of such note, bill, or currency be not proved."
It is conceded that if the money taken had been described simply as "money," the proof in the case would support the indictment in this respect; but it is claimed that, inasmuch as it is described as "lawful money of the United States," it was necessary to prove that the money was either coin or legal tender notes, issued by the United States Government.
It has often been held in this, as well as in other States, that unnecessary matters of description in an indictment, or information, must be proved as charged. Ball v. State, 26 Ind. 155; Wertz v. State, 42 Ind. 161; Dennis v. State, 91 Ind. 291.
In McQueen v. State, 82 Ind. 72, it was said, however: "It would be unreasonable to expect one who is robbed of money, or its representative, to give an accurate description of it, and it would render it almost impossible to convict a thief or a robber if courts should undertake to require the prosecutor in all cases to give a particular description of the money or notes feloniously taken."
It was no doubt the purpose of the Legislature in enacting the statute above set out to avoid the difficulty often encountered by the prosecutor in proving an exact description of the money in cases like this, and it is our duty, so far as we can do so, consistent with legal rules, to carry that purpose into effect. It was the evident intention of the prosecutor in drafting the indictment in this case to make it conform to the statute, otherwise there would have been a more particular description of the money taken, but in doing so he added unnecessary words of description. In the case of Mergentheim v. State, 107 Ind. 567, 8 N.E. 568, it was said: "But the variance, if such it be, had reference only to a matter of unnecessary description; and for a mere failure to prove with technical exactness an averment which was not necessary nor of the essence of the offence charged, we would not, under the rules governing appeals in criminal cases, be authorized to reverse."
The evidence in this case proves that the money taken was paper money consisting of tens and five-dollar bills. The money taken from the appellant at the time of his arrest, and which is claimed by the State...
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