Tosser v. State

• Decision Date: 19 June 1928
• Docket Number: No. 24506.,24506.
• Citation: 162 N.E. 49,200 Ind. 156
• Parties: TOSSER v. STATE.
• Court: Indiana Supreme Court

200 Ind. 156

162 N.E. 49

TOSSER

v.STATE.

No. 24506.

Supreme Court of Indiana.

June 19, 1928.

Appeal from Vigo Circuit Court; John P. Jeffries, Judge.

Fred Tosser was convicted of grand larceny, and he appeals. Affirmed.Hamill, Hickey, Evans & Danner, of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and Arnet B. Cronk and Carl Wilde, both of Indianapolis, for the State.

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.

[1] 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, 26 Ind. 106;Jones v. State, 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 a larceny committed in the latter county. Not at an 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 larceny.”

Jones v. State, supra, also supports the contention of the state.

In Martin v. State, 176 Ind. 317, 95 N. E. 1001, the court says prosecutions authorized by section 1875, Burns' Ann. St. 1908, in a case where property has been stolen in one county and brought into another by the thief, are upheld upon the distinct ground that a taking of stolen property from one county into another constitutes a new or fresh theft, and it may be said that the prosecution for such offense is in the county in which it was committed, and falls within the requirement of section 13 of our Bill of Rights.

Section 13 of the Bill of Rights, section 65, Burns' 1926, provides that, in all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury, in the county in which the offense shall have been committed. The court did not err in overruling the motion to quash.

[2][3] The appellant claims that the court erred in overruling appellant's motion for a new trial, for the reason that the court erroneously compelled appellant over his objection, to answer the following question put to him by the state on cross-examination:

“I will ask you if you were arrested on the 16th day of February, 1922, charged with violating the liquor law.”

When the defendant takes the stand as a witness, he...