Ulmer v. State

• Decision Date: 02 December 1859
• Citation: 14 Ind. 41
• Parties: Ulmer v. The State
• Court: Indiana Supreme Court

14 Ind. 41

Ulmer v. The State

Supreme Court of Indiana

December 2, 1859

A Petition for a Rehearing of this Case was Filed on the 11th of January, and Overruled on the 1st of May, 1860.

From the Lagrange Circuit Court.

The judgment is affirmed with costs.

A Ellison, for appellant.

J. E McDonald, Attorney General, for State.

OPINION

Perkins J.

Indictment, conviction and sentence to the state prison.

"State of Indiana, Lagrange county, ss.

"State of Indiana v. George T. Ulmer.

"In the Lagrange Circuit Court, October term, A. D. 1858, adjourned to January, A. D. 1859.

"The grand jurors of the state of Indiana, duly impanneled, sworn and charged, in said Court, at said term, to inquire within and for the body of said county of Lagrange, upon their oath present and charge that one Asa Crape and one William Jones, late of said county, on the 12th day of September, in the year of our Lord eighteen hundred and fifty-six, at and in the county of Lagrange aforesaid, two horses of the value of one hundred dollars each, and one horse, commonly called a gelding, of the value of one hundred dollars, the personal goods and chattels of one Ralph Selby, then and there being found, did unlawfully and feloniously steal, take, lead, ride and drive away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.

"And the said grand jurors further present and charge that George T. Ulmer, late of the county aforesaid, before the committing of the felony and larceny aforesaid, to-wit, on the 10th day of September, in the year last aforesaid, at and in the county of Lagrange aforesaid, did unlawfully and feloniously incite, move, procure, encourage, counsel, hire, and command the said Asa Crape and the said William Jones, to do and commit the said felony and larceny in manner and form aforesaid.

"And the said grand jurors do further present and charge that the said George T. Ulmer, at and from the day and year last aforesaid, did conceal the fact of said crime and offense by him committed in manner and form as aforesaid, for the period and time of one year from and after the commission thereof by him, to-wit, on and from the 10th day of September, A. D. eighteen hundred and fifty-six, to the 10th day of September, eighteen hundred and fifty-seven.

"And the said grand jurors do further present and charge that the said George T. Ulmer, after the commission of said offense, by him committed as aforesaid has been absent from the state of Indiana aforesaid for the period and time of five months, to-wit, from the thirtieth day of January, A. D. eighteen hundred and fifty-eight, to the first day of July, A. D. eighteen hundred and fifty-eight; and that the said George T. Ulmer has concealed himself so that process could not be served upon him for the period and time of five months after the commission of said offense by him committed as aforesaid.

"And so the jurors upon their oaths aforesaid do say and charge that the said George T. Ulmer did commit the crime aforesaid, in manner and form aforesaid, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Indiana. Robert Parrott,

"Special Prosecuting Attorney."

This indictment was found at an adjourned term of the Lagrange Circuit Court; and it is contended that for that reason it should have been quashed; but we think otherwise.

It is provided by an act of 1855 (Acts of 1855, p. 70), "that if at the close of any term of the Circuit Court of any county, or when it shall become necessary or proper for said Court to adjourn from any cause, the business pending therein shall not be finished, it shall be lawful for such Court to adjourn until some other certain time, to be specified in the adjourning order, of which public notice shall be given in some manner, to be specified by said Court; and at such time, such Court shall meet and continue in session so long as the business shall require, and such adjourned session shall be deemed a part of the regular term of such Court."

And the 2 R. S. p. 363, provides that "whenever the grand jury is dismissed before the final adjournment, they may be summoned to attend again at the same time, if necessary; and if a full jury do not attend, the number may be completed from the bystanders."

It thus appears that criminal business may arise, and be taken cognizance of, at any time during the term: and, whenever it does so arise, may be treated as unfinished business of the term. This construction violates no rule of law, and tends to promote speedy trials of persons accused of crime--a result called for alike by the interest of the accused, and the public policy of the state.

It is claimed that the allegations in the indictment are insufficient. Ulmer is indicted as an accessory before the fact. He may be thus indicted and tried, before the indictment and conviction of the principal. 2 R. S. pp. 422 423. But the indictment against the accessory must aver the commission of the offense by the principal, as well as the counseling of it by the accessory. It is insisted that the indictment in this case does not contain such averments, but we think it does. 1 Arch. Crim. Pl., p. 16. The time at which the offense is charged in the indictment to have been committed is without the statute of limitations; but ...