VanCleave v. State

Decision Date06 April 1898
Citation49 N.E. 1060,150 Ind. 273
PartiesVANCLEAVE v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Decatur county; W. J. Buckingham, Judge.

Henry Vancleave was convicted of robbery, and appeals. Affirmed.Lee F. Wilson and David H. Thompson, for appellant. Wm. A. Ketcham, Atty. Gen., Merrill Moores, and Alonzo Blair, for the State.

McCABE, J.

The appellant was indicted in the Shelby circuit court, charging that he “on or about the 8th day of May, A. D. 1897, at said county and [state of Indiana], did then and there, unlawfully, feloniously, violently, and forcibly, make an assault in and upon one James A. Young, and did then and there and thereby feloniously and forcibly, by violence and the putting said James A. Young in fear, take, steal, and carry away from the person of him, the said James A. Young, fifteen dollars in lawful money, of the property of said James A. Young, then and there of the value of fifteen dollars, and one pocketbook belonging to said James A. Young, then and there of the value of twenty-five cents.” On a trial by jury the defendant was found “guilty of the offense charged in the indictment in this cause, and that his true age is now 36 years.” Judgment followed upon the verdict according to the act approved March 8, 1897, known as the “Indeterminate Sentence Law,” applicable to male offenders guilty of a felony other than treason or murder in the first or second degree, and 30 years of age or over (Acts 1897, p. 219); the court having overruled his motion for a new trial. Error is assigned by the appellant upon numerous rulings, many of which have been waived by failing to discuss them. We will notice such of them as have not been waived.

The first of such rulings urged as error is overruling appellant's motion for a venire de novo. The ground on which this motion is urged is that the indictment charges both robbery and larceny, and the verdict fails to show of which it is that the jury find the defendant guilty. A charge of larceny is always included in a charge of robbery, which latter crime it is practically conceded is properly charged in the indictment. Rains v. State, 137 Ind. 83, 36 N. E. 532, and authorities there cited. A general verdict of guilty as charged in the indictment is a verdict that the defendant is guilty of the crime or offense or offenses charged in the indictment, and such a verdict is not defective. 1 Bish. Cr. Proc. § 1015a, 3 and 4, and authorities cited. Therefore the circuit court did not err in overruling appellant's motion for a venire de novo.

Another objection urged to the verdict is that the act referred to above, authorizing such a verdict, is unconstitutional and void for the same reasons urged against the constitutionality of the reformatory act in Miller v. State (at this term) 49 N. E. 894. On the authority of that case, and on the authority of Wilson v. State (at this term) 49 N. E. 904, upholding the constitutionality of the act now in question, we hold it constitutional and valid.

The next objection urged under the motion for a new trial is that the verdict is contrary...

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3 cases
  • Terry v. Byers
    • United States
    • Indiana Supreme Court
    • October 30, 1903
    ... ... the petitioner of the crime of larceny, rendered January 19, ... [161 Ind. 361] 1901, by the Allen Circuit Court in this ... State, and fixing his punishment at confinement in said ... reformatory for an indeterminate period of from one to ... fourteen years. The illegality of ... Miller v ... State, 149 Ind. 607, 49 N.E. 894; Skelton ... v. State, 149 Ind. 641, 49 N.E. 901; ... Vancleave v. State, 150 Ind. 273, 49 N.E ... 1060; Wilson v. State, 150 Ind. 697, 49 ... N.E. 904; Davis v. State, 152 Ind. 34, 71 ... Am. St. 322, 51 N.E ... ...
  • Daveros v. State, 25541.
    • United States
    • Indiana Supreme Court
    • April 28, 1933
    ...could reasonably have found as they did.” This is not a case where the judgment on the evidence should be disturbed. Vancleave v. State, 150 Ind. 273, 275, 49 N. E. 1060. Appellant also claims error in the court's refusal to give each of his tendered instructions, Nos. 5, 11, 12, 14, and 15......
  • Daveros v. State
    • United States
    • Indiana Supreme Court
    • April 28, 1933
    ... ... passed upon a motion for a new trial, carefully considered ... the evidence to determine whether the jurors could reasonably ... have found as they did." This is not a case where the ... judgment on the evidence should be disturbed ... Vancleave v. State (1898), 150 Ind. 273, ... 275, 49 N.E. 1060 ...          Appellant ... also claims error in the court's refusal to give each of ... his tendered instructions Nos. 5, 11, 12, 14 and 15. Tendered ... instruction No. 5 would have told the jury that the defendant ... in a ... ...

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