Tosser v. State

• Decision Date: 19 June 1928
• Docket Number: 24,506
• Citation: 162 N.E. 49,200 Ind. 156
• Parties: Tosser v. State of Indiana
• Court: Indiana Supreme Court

162 N.E. 49

200 Ind. 156

Tosser v. State of Indiana

No. 24,506

Supreme Court of Indiana

June 19, 1928

1. LARCENY---Taking Goods Stolen to Another County---Constitutes New Theft.---An affidavit charging the larceny of goods in one county and then taking them into another was filed in the latter county. The affidavit was sufficient to withstand a motion to quash, notwithstanding the constitutional provision (13 of the Bill of Rights, 65 Burns 1926) that all criminal prosecutions shall be in the county in which the offense was committed, as the taking of the property from one county to another constitutes a new and fresh theft in that county. p 158.

2. CRIMINAL LAW---Cross---examination of Defendant---As to Commission of Other Crimes---Extent of Cross-examination.---When the defendant takes the stand as a witness, he is subject to cross-examination as any other witness, and he may be asked questions concerning any fact tending to impair his credibility as a witness by showing his interest, bias, ignorance, motives, or that he is depraved in character. All this may be shown on cross-examination, but the extent to which this may be carried is within the sound discretion of the court. p. 160.

3. CRIMINAL LAW---Cross---examination of Defendant as to Other Crimes---Presumed Correct.---In a prosecution for larceny the defendant took the stand as a witness and was asked on cross-examination as to his arrest for violating the liquor law, and, over his objection, was compelled to answer. Held that such evidence was competent as affecting his credibility, and there being no showing that it was considered for any other purpose, it will be presumed that the action of the trial court was correct. p. 160.

4. CRIMINAL LAW.---Unless error is affirmatively shown on appeal, the Supreme Court will presume that the action of the trial court was correct. p. 160.

5 LARCENY.---The corpus delicti in larceny may be proved by circumstantial evidence. p. 160.

6. LARCENY---Proof Sufficient.---While the unexplained possession of another's property may not, of itself, be sufficient to establish larceny, such fact, taken together with other circumstances, may be sufficient. p. 160.

7. LARCENY---Evidence Sufficient---Possession of Stolen Goods.---In a prosecution for larceny, where a large number of the articles alleged to have been stolen were found in the possession of the defendant soon after the larceny, that circumstance, together with his claim of ownership, that he bought them, but was unable to remember where he bought them and the testimony of a detective to whom the defendant related the circumstances regarding the property, when all taken together, constitute some evidence of the guilt of the defendant. p. 161.

8. CRIMINAL LAW---Evidence Considered on Appeal.---In determining on appeal whether the finding of guilty is sustained by sufficient evidence, the court considers only the evidence favorable to the state. p. 161.

From Vigo Circuit Court; John P. Jeffries, Judge.

Fred Tosser was convicted of grand larceny, and he appeals.

Affirmed.

Hamill, Hickey, Evans & Danner, for appellant.

U. S. Lesh, Attorney-General, Arnet B. Cronk and Carl Wilde, for the State.

OPINION

Willoughby, J.

This was a prosecution for grand larceny, based upon the second count of an affidavit filed in the Vigo Circuit Court, wherein it was charged that appellant, in Knox County, on December 8, 1922, did then and there unlawfully and feloniously, steal, take and carry away from said county of Knox, and did then and there feloniously bring into the county of Vigo, State of Indiana, various articles belonging to one Thomas J. Arnold, and of an aggregate value of $ 285.

A motion to quash the second count of the affidavit was filed, and the reasons alleged for quashing are, that said count of said affidavit does not state facts which constitute a public offense and does not state the charge therein contained with sufficient certainty. That said second count contains more than one distinct offense, in this: Said count charges the offense of larceny and also contains the distinct offense of bringing into said county of Vigo goods unlawfully obtained by means of larceny.

The court overruled the motion to quash, and the appellant entered a plea of not guilty, and was tried by the court without a jury. The court found appellant guilty of grand larceny and fixed his punishment at imprisonment from one to fourteen years and a fine of $ 10 and costs, and disfranchisement for five years.

A motion for a new trial was made and overruled and judgment rendered on the finding. An appeal was then taken from this judgment. Appellant alleges error in overruling appellant's motion to quash the second count of the affidavit.

It is claimed by the state that if property is alleged to be stolen in one county and taken into another county, as in the instant case, and a prosecution is had in the county to which the goods are taken, the presentment is sufficient if it properly alleges the theft in the county in which the goods are stolen. Hurt v. State (1866), 26 Ind. 106; Jones v. State (1876), 53 Ind. 235. In Hurt v. State, supra, the court said:

"The information charges a larceny by the defendant, committed in the county of Allen and that he brought the stolen property into Wells county. It is urged that this is not a charge of larceny committed in the latter county. Not at all approving of the form of this indictment, which should have directly charged a larceny in Wells, yet we cannot, under the code, hold it bad. Each removal of the property by the thief into another jurisdiction, was at common law held to be a fresh taking, and therefore a new larceny. The averment in this case of such removal was, it is true, an allegation of the evidence. But it was conclusive. It could not possibly be true without resulting in the defendant's guilt. It was, therefore, necessarily the equivalent of a direct charge of

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