Wachstetter v. State
| Decision Date | 25 November 1884 |
| Docket Number | 11,687 |
| Citation | 99 Ind. 290 |
| Parties | Wachstetter v. The State |
| Court | Indiana Supreme Court |
Rehairing Date: February 20, 1885
Reported at: 99 Ind. 290 at 298.
From the Criminal Court of Marion County.
The judgment is affirmed, with costs.
R. B Duncan, J. S. Duncan, C. W. Smith, J. R. Wilson, J. W Gordon, L. O. Bailey, J. M. Cropsey and C. M. Cooper, for appellant.
F. T. Hord, Attorney General, W. T Brown, Prosecuting Attorney, and C. F. Robbins, for the State.
Howk, J. Zollars, C. J., think that too much latitude was allowed on the cross-examination of the witness Thomas Stapp.
On the 15th day of August, 1883, an indictment was duly returned into the court below in this case, which charged, in substance, that the appellant, Gottlieb Wachstetter, and one Hogan McCarthy and William McCarthy, on the 6th day of July, 1883, at and in the county of Marion, and State of Indiana, did then and there, unlawfully and feloniously, steal, take and carry away a large amount of personal property, specifically describing each item thereof, consisting chiefly of legal tender treasury notes, silver certificates, and national bank notes, of different denominations and values, and a number of pieces of silver coin of American coinage, of different sizes and values, etc., of the moneys, personal goods and chattels of James Q. W. Wilhite, contrary to the form of the statute, etc.
Upon the appellant's arraignment and plea of not guilty, the issues as to him were separately tried by a jury, who returned into court the following verdict: "We, the jury, find the defendant guilty as charged in the indictment, and that he be fined in the sum of six hundred dollars, and be imprisoned in the State prison for a period of five years, and be disfranchised and rendered incapable of holding any office of trust or profit for a term of five years.
(Signed) "Louis B. Willsey, Foreman."
Over the appellant's motions for a venire de novo and for a new trial, the court rendered judgment against him upon and in accordance with the verdict.
In this court, errors are assigned by the appellant, as follows:
1. The overruling of his motion for a venire de novo;
2. The overruling of his motion for a new trial; and,
3. The error of the trial court, as alleged, "in allowing the State's attorney to cross-examine the affiants, whose affidavits were filed by the defendant below, in support of his motion for a new trial, before he was allowed to examine them."
The first question presented by the appellant's counsel, in argument, is the alleged insufficiency of the verdict. Counsel claim that "the verdict of the jury is contrary to evidence, and to law--contrary to law, because contrary to evidence." The only objection, pointed out by counsel to the verdict, is in reference to the amount of the fine assessed therein against the appellant. In section 1933, R. S. 1881, which defines the offence of grand larceny and prescribes its punishment, it is provided that whoever is guilty of grand larceny, as there defined, "upon conviction thereof, shall be * * * fined not exceeding double the value of the goods stolen," etc. The fine assessed against the appellant in the verdict of the jury, in the case at bar, as we have seen, was $ 600. Appellant's counsel insist, with much earnestness and apparent confidence, that the jury were not authorized by the evidence appearing in the record, under the law, to assess the fine in this case at $ 600. In other words, counsel claim as we understand them, that there is no evidence in the record which authorized the jury to find that the value of the goods stolen by the appellant, and described in the indictment, amounted to the sum of $ 300.
The prosecuting witness, Wilhite, testified on the trial that when he went into the appellant's place of business, on Illinois street, in the city of Indianapolis, where the alleged larceny was committed, he had "between forty and sixty dollars" in money, in a little money-purse in his hip-pocket, on the left-hand side. He could not describe his money with much accuracy, but he knew he had one twenty-dollar bill and a ten-dollar bill. He did not know just how many five-dollar bills he had, but he thought at least two, if not three, five-dollar bills. He also had some silver change in his purse, but he could not recollect the amount of such change, or the number or size of the different pieces. This purse and its contents, together with the other personal goods described in the indictment, were stolen from the person of Wilhite, as the evidence tended to prove, while he was stupefied from the effects of a drink taken in the appellant's saloon, in an upper room of the saloon building. It is conceded by the appellant's counsel that the value of the goods stolen, exclusive of the money, was shown by the evidence to be $ 250. It is claimed by counsel, however, that the jury were not authorized by the evidence appearing in the record to find the value of the money stolen to be more than $ 22; that this sum, added to the value of the other goods stolen, makes the total value of all the stolen goods to be $ 272; and that, therefore, the highest fine which the jury could lawfully assess against the appellant was a fine of $ 544, instead of the fine actually assessed of $ 600.
Appellant's counsel assume, as the basis of their calculation, that the evidence shows the amount of money in Wilhite's purse to have been $ 42, and no more. They then claim that the jury were precluded by the evidence from taking into consideration the twenty-dollar bill in determining the amount of the fine, because the witness could not recollect what kind of a bill it was. He knew it was not a silver certificate, but that it was good money. The jury were justified by the evidence, we think, in finding that the note was either a legal tender treasury note or a national bank note, and it was not material which of the two the jury found it to be, as the indictment charged the larceny of a twenty-dollar bill of each kind. Besides, the question as to the value of the stolen goods was a question peculiarly within the province of the jury, as, indeed, are all other questions, whether of law or fact, in a criminal cause; for, under the 19th section of the bill of rights in our State Constitution, the jury are the ultimate judges of the law as well as of the facts in all criminal cases. Keiser v. State, 83 Ind. 234; Fowler v. State, 85 Ind. 538; Nuzum v. State, 88 Ind. 599.
It is manifest from the verdict of the jury in the case in hand, that they must have found the value of the stolen goods to be at least $ 300. We can not say that there is no evidence in the record which sustains this finding as to the value of the stolen goods, and, therefore, we can not hold that the fine assessed against the appellant in the verdict of the jury is an illegal fine under the evidence, or under the law applicable to the evidence; on the contrary, we are of opinion that the verdict of the jury upon the point under consideration is sustained by the evidence, and, therefore, in strict accordance with law.
The next alleged error of which the appellant complains is the refusal of the court to give the jury the seventh instruction requested by him. This instruction reads as follows:
"If, taking all the evidence in the case tending to show whether the prosecuting witness, James Q. W. Wilhite, or some other person occupied the lounge, in the front room of the defendant's business place, up-stairs, at the time of the alleged larceny, and if, considering that evidence all together with all the evidence in the case, you shall have a reasonable doubt of defendant's guilt, you must acquit him."
There is no available error in the refusal of the court to give the jury this instruction, for the reason, if no other, that the substance and law of the instruction had been given the jury in much clearer and less confused language in the court's own instructions. Harvey v. State, 40 Ind. 516; Graham v. Nowlin, 54 Ind. 389. Besides, the instruction gave undue prominence to an isolated question in the case, upon which the appellant's guilt or innocence of the offence charged did not necessarily depend, and was properly refused on that ground. Goodwin v. State, 96 Ind. 550, 568.
The last error complained of by appellant's counsel is the action of the trial court in permitting the State's attorney to propound certain questions, upon cross-examination, to two of the appellant's witnesses, Thomas Stapp and Frank Wilson. One William Lee had testified on behalf of the appellant, and the State had introduced evidence tending to impeach Lee, by showing that his general moral character was bad. Stapp and Wilson were then called as witnesses by the appellant for the purpose of sustaining his witness Lee, by proving that Lee's reputation for truth and veracity was good. On cross-examination of Stapp, the State's attorney propounded to him, of and concerning Lee, the following questions:
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