Terry v. State

• Decision Date: 28 November 1859
• Citation: 13 Ind. 65
• Parties: Terry v. The State
• Court: Indiana Supreme Court

13 Ind. 65

Terry v. The State

Supreme Court of Indiana

November 28, 1859

From the Carroll Circuit Court.

The judgment is reversed.

J. H Gould and A. H. Evans, for appellants.

J. E McDonald, Attorney-General, and A. L. Roache, for State.

OPINION

Hanna J.

Indictment for robbery. Motion to quash overruled. Judgment of guilty, over a motion for a new trial.

Three points are presented on a motion to quash--

First. That it is not alleged that the taking was against the will of the person robbed.

We think that the averment is sufficient. It is, that on, &c., at, &c., the said, &c., did commit an assault, &c., and did then and there unlawfully, forcibly, and feloniously take from the person of him, the said, &c., one, &c., of the personal goods of him, the said Eli Hoff, by violence to the person of him, the said, &c., and by putting him in fear. This substantially covers the statutory definition of the offense.

The second point is, that the property taken is not sufficiently described. The averment is: "One pocket-book of the value of fifty cents, one bank note of the value of ten dollars, one bank note of the value of five dollars, one piece of gold coin, of American coinage, of the value of five dollars."

The statute is against forcibly and feloniously taking from the person any article of value by violence or putting in fear. 2 R. S. p. 402.

We suppose that no more particularity ought to be required in an indictment for this offense, in describing the property, than in a prosecution for larceny. Whart. Crim. Law, § 346.--Id. 1703.

It has been held that where the indictment averred that the defendant stole a bank note of the value of 10 dollars, the description was sufficiently particular. Commonwealth v. Richards, 1 Mass. 337. This case is cited, apparently with approbation, by this Court in Engleman v. The State, 2 Ind. 91.

The third point is, that the indictment does not charge a carrying away.

We cannot perceive that there is anything in this objection. The position assumed in argument that a robbery is a forcible larceny, and no more, is not sustained by reason or authority.

It is insisted that the finding is not sustained by the evidence, because Hoff, the principal witness, although he testified to the robbery, so contradicted himself upon cross-examination, and was contradicted by the evidence of other witnesses to such an extent, as to entirely invalidate his testimony. This was a question for the jury and the Court below, and we do not think it is such a case as we should interfere in, according to the former decisions of this Court.

During the progress of the trial, the state called a witness, by whom proof was made as to the personal appearance, manner and condition of the apparel, of the defendant, on the evening of the day of the imputed crime, at the time witness met him on his way to Delphi. The distance at which this meeting took place, from where the crime was alleged to have been committed, or the precise time that had elapsed, are not shown. Upon cross-examination of this witness, the defendant offered to prove his declarations made, at the time of the meeting, to the witness in reference to, or explanation of, his, then,...