« ForrigeFortsett »
(146 N.E.) which count in the affidavit it desired to l vic v. State (Ind. Sup.) 143 N. E. 357; Ew. proceed for conviction.
bank's Criminal Law, sections 265–268. Section 2269, Burns' 1914, provides that:  The appellant claims that the court "Whoever feloniously steals, takes and car- erred in giving instruction No. 12, which is ries, leads or drives away the personal goods as follows: of another, of the value of twenty-five dollars "To warrant the conviction of the defendant or upwards, is guilty of grand larceny, and, on under the second count of the affidavit, the conviction, shall be imprisoned in the state state must prove by the evidence: First, that prison not less than one year nor more than the property described in the affidavit or some fourteen years, fined not exceeding double the part of it was stolen; second, that the defendvalue of the goods stolen, and disfranchised and ant received the property or some part of it rendered incapable of holding any office of from persons who stole it or from some one trust or profit for any determinate period." acting for or on behalf of such thief; third,
that the defendant when he received such propSection 2273, Burns' 1914, provides that: erty knew that it was stolen property." “Whoever buys, receives, conceals or aids in the concealment of anything of value, which
The objection pointed out to this instruchas been stolen, taken by robbers, embezzled, tion by the appellant is that it fails to state or obtained by false pretense, knowing the same the degree of proof required before a conto have been stolen, taken by robbers, embez- viction may be had. Instruction No. 12 is zled, or obtained by false pretense, shall, if the followed by instructions Nos. 13 and 14, goods be of the value of twenty-five dollars which are as follows: or more, on conviction, suffer the punishment
"Instruction No. 13. Evidence bas been inprescribed for grand larceny, and if the goods, be of the value of less than twenty-five dollars troduced in this cause that the property deshall suffer the punishment prescribed for petit scribed in the second count of the affidavit was larceny."
stolen by persons whose true names are to the
affiant unknown, and that such property was by Section 2056, Burns' 1914, provides that:
them stolen from the Cleveland, Cincinnati,
Chicago & St. Louis Railway Company. "An indictment or affidavit for larceny may "In order to render the offense of receiving contain a count for * receiving or con- stolen goods possible under this count, the cealing the same property, knowing it to have goods stolen must retain their stolen character been stolen
and the accused may be at the time received, if received by the defendconvicted of either offense, and the court or ant. If the goods were transferred by the jury trying the cause may find all or any of the thief to a guilty receiver, then such person persons accused guilty of any of the offenses takes as the receiver and not as the thief, and charged."
one receiving the goods from some other source
than from the thief would not be guilty of Another provision of statute, section 2121, receiving stolen goods, unluss the person from Burns' 1914, provides that:
whom the same were received be the agent of
the thief, and the defendant knew it and re"In any prosecution for the offense of buy-ceives such goods under such circumstances as ing, receiving, concealing, or aiding in the con- to connect him with the thief. cealing of any stolen property, it shall not be "If the defendant received the goods in necessary, on the trial thereof, to prove that question, or any part thereof, from some secthe person who stole such property has been ond party other than the thief and such secconvicted.”
ond party was the agent of the thief and the
defendant knew him to be such and that such Another provision of statute, section 2061, goods had been stolen, then such goods would Burns' 1914, provides that:
retain their stolen character at the time of
such receipt by the defendant and all other "When any offense is committed upon or in necessary elements having been proven, he relation to any property
* which, when would be guilty of receiving stolen goods. the offense was committed, was in possession of "Instruction No. 14. Guilty knowledge on a bailee
the indictment or affidavit the part of the defendant that the goods had for such offense shall be deemed sufficient, if been stolen is essential to the constitution of it allege the ownership of such property to be the offense, but it is also true that proof of in such bailee."
direct knowledge is not necessary, and that
evidence of facts and circumstances sufficient It appears that the property named in to create in the mind of the accused a belief each count of the affidavit is the same prop- that the goods were stolen, may amount to erty, viz., two 34x4 size Kelly-Springfield guilty knowledge of such fact. Guilty knowlbrand automobile tires, of the value of $co, edge may be shown by direct proof or by any and the property of the Cleveland, Cincin- surrounding facts from which the same can be
inferred." nati, Chicago & St. Louis Railway Company.
 The court did not err in overruling ap- These instructions must be considered pellant's motion to require the state to elect along with No. 12, and when so considered upon which count in the affidavit it desired they fully state all the facts necessary to be to proceed upon for conviction of the defend-proven in order to convict the appellant upant. Section 2056, Burns' 1914; Kennegar on the second count of the affidavit. v. State, 120 Ind. 176, 21 N. E. 917; Good- (3] This court has frequently held that inman v. State, 141 Ind. 35, 39 N. E. 939; Rok-structions should be considered in their en
tirety, and not in separate or dissected parts, | 1921. The property consisted of two automoand, even if some particular instruction, or bile tires described in the affidavit, which some portion of an instruction, standing when found on the 4th day of October, 1921, alone or taken abstractedly, and not explain- were in use by the defendant on his automoed or qualified by others, be erroneous, it bile. In explaining his possession of the will afford no grounds for reversal, where tires the appellant claimed that he bought the instructions as a whole state the law cor- them at South Bend at a tire shop kept by rectly. Shields v. State, 149 Ind. 395, 49 N. Smith & Wooley in South Bend; that when E. 351; Baker v. State, 190 Ind. 385, 129 he bought the tires they had been run and N. E. 468.
were used ones, but practically in good shape We have examined the series of the in- and a bargain for the money. He says he structions given in this case, and conclude paid $21 for them. He put them in the back that, as a whole, the law is fully stated with of the car in which he was riding, a car be. regard to each count of the affidavit and the longing to a Mr. Wood, and took them to the evidence applicable thereto.
Bowman tire shop in Elkhart, and put them  Before the appellant could be heard in the back end of the store. Afterwards to complain of said instruction No. 12, he he had a Mr. Dixon, who was working there, would be required to tender an instruction to put them on. This testimony of the decovering the law more fully and request the fendant is not contradicted by any evidence. court to give it. Instruction No. 12 is not It is true that the exclusive possession of claimed by appellant to state the law errone property recently stolen, when such possesously, but he claims that it is not full enough sion is not satisfactorily explained, raises a to state the law clearly upon the second presumption that the possessor is guilty of count of the affidavit, but, not having tender the theft, but in this case the jury found the ed any instruction on the subject, he can- defendant guilty of receiving stolen propernot complain. Bartlow v. State, 183 Ind. ty, and do not, in their verdict, find the de 398, 109 N. E. 201 ; Colondro v. State, 188 fendant guilty under the first count of the Ind. 533, 125 N. E. 27; Underhill v. State, affidavit, which was for larceny. This, in 190 Ind. 558, 130 N. E. 225.
effect, is a finding of not guilty of the larThe verdict was returned upon the second ceny. count of the affidavit, and the appellant  The rule that the possession of stolen claims that the evidence to sustain a convic- property, the proceeds of a larceny soon afttion upon said count is insufficient because er the commission of the offense, unless exit wholly fails to show that the appellant plained, is prima facie evidence of the guilt knew that the property was stolen property. of the person in whose possession the prop
[5, 6] In order to convict a defendant oferty is found, does not apply to the offense receiving stolen goods under this count the of receiving' stolen property. People v. Mirgoods stolen must retain their stolen char- abella, 294 Ill. 246, 128 N. E. 374; People v. acter at the time received, if received by the Lardner, 296 Ill. 190, 129 N. E. 697; State defendant. Guilty knowledge on the part of v. Bulla, 89 Mo. 595, 1 S. W. 764; State v. defendant that the goods had been stolen is Richmond, 186 Mo. 71, 84 S. W. 880; State essential to a conviction, but it is also true v. Adams, 133 N. C. 667, 45 S. E. 553. that proof of direct knowledge is not neces  In order to sustain a verdict of consary, and that evidence of facts and circum- viction on the second count of the affidavit, stances, sufficient to create in the mind of there must be some evidence tending to prove the accused the belief that the goods were each essential element of the offense chargstolen, is sufficient to convict. Guilty knowl- ed. Knowledge by the defendant when he edge may be shown from any direct facts received it that the property was stolen is from which the same can be inferred. essential to a conviction of the crime of re
In this case, there is no direct proof that ceiving stolen property knowing it to be the defendant knew that the goods were stolen. stolen goods, so, in order to justify con A thorough examination of the evidence viction on the second count of the affidavit, fails to disclose proof of any fact or evidence it must appear from the circumstances and tending to prove any fact from which the . facts proven in the case that the goods were jury could infer that the appellant knew stolen goods, and that appellant knew it at that the property was stolen property at the the time he received them.
time he received it. The verdict is not susIt appears from the evidence that the tained by sufficient evidence, and is contrary goods alleged to have been stolen were stol- to law. en about August 22, 1921; that they were Judgment reversed, with instructions to found in defendant's possession October 4, sustain appellant's motion for a new trial.
prayed by the petition, and concluding with ROST V. INTERNATIONAL ELECTRIC Co. the statement "and this cause is continuet al. (No. 24760.)
ed.” Four months later appellant, Rost, fil(Supreme Court of Indiana. March 12, 1925.) ed a verified motion to set aside "so much of
said order as makes final allowance to the 1. Receivers om 199—-Ex parte allowances by receiver
and his attorney," in court to receiver, subject to be set aside on amounts as stated, respectively, setting out exceptions to final report,
certain alleged reasons for asking such acEx parte allowances by court to receivers, tion. Nothing more appears to have been in charge of trust while in process of being ad- done in the matter for more than 7 months, ministered, without notice to parties in inter- when the court, on June 4, 1924, 'overruled est, are subject to be reviewed and set aside
the motion, to which ruling appellant excepton exceptions to final report.
ed, and was granted 10 days in which to file 2. Receivers Com 199—How appeal from order an appeal bond. overruling exceptions to allowance to receiv.
The bond was filed on June 10th, and on er may be perfected, stated.
the 60th day thereafter, being 70 days after Appeal from order overruling exceptions to the motion was overruled, and almost 14 allowance to receiver, if assumed to be appeal- months after the allowances were made, apable order for payment of money, can only be pellant filed his transcript and assignment taken by filing transcript and assignment of errors, together with appeal bond, within 30 of errors in the Supreme Court. Appellees days from date of order, as required by Burns' have filed a verified answer to such assignAnn. Supp. 1921, $ 1392b; Acts 1921, c. ment, alleging that the receivership is still 251, 8 2.
pending in the trial court; that, at the time
appellant's motion to set aside the orders of 3. Receivers en 199—Appeal from overruling allowance was overruled, the judge of that exceptions to allowance to receiver, barred.
court orally advised appellant's attorney That receivership was still pending, and that when the receiver should file his final rereceiver had filed final report to which excep- port showing the payment of the money so altions to allowance to receiver and his attorney were taken, determination of which was pend- lowed to himself and his attorney, exceptions ing in probate court awaiting trial, held to bar to that report might be taken on which the appeal from order overruling exceptions to al matter would be set down for trial, and evilowance made four months thereafter.
dence could then be introđuced covering the Appeal from Probate Court, Marion Coun. whole question of the right of the receiver ty; Mablon Bash, Judge.
and his attorney to receive such allowances,
and the validity of appellant's exceptions Proceeding by Carl Rost against the Inter. thereto; that on August 4, 1924, before this national Electric Company and others to set appeal was perfected, said receiver filed his aside an ex parte order. From an order final report, and on September 10th appeldenying his motion, he appeals. Demurrer lant filed exceptions to it by which he chalto the answer in bar of his assignment of lenged the allowances to the receiver and errors, overruled.
his attorney, which exceptions are now pendThomas H. Fittz, of Indianapolis, for ap- ing in the probate court awaiting trial; and pellant.
that the same questions are thereby preE. C. Miller, Ralph B. Gregg, and John W. sented to the probate court for decision Kern, all of Indianapolis, for appellees. which are sought to be presented by this ap
peal. Appellant has filed a demurrer, for PER CURIAM. On June 29, 1923, the re- want of facts sufficient to bar the appeal, to ceiver of the International Electric Company this plea. filed a current report, setting forth his re-  It has been decided many times that ceipts and expenditures to that date, which allowances made ex parte by the court to its was approved ; and he then filed a petition officers in charge of a trust while it is in for instructions as to the conduct of the trust, process of being administered, and without in which he asked the court to authorize cer- notice to the parties in interest, are only tain settlements to be made, and to "fix fur- interlocutory, and are subject to be reviewed ther and final allowances for this receiver and set aside on exceptions to the final reand his attorney
* for their services in port of such officers. Collins v. Tilton, 58 full,
and that said receiver be au. Ind. 374, 377, 378; Fraim v. Millison, 59 Ind. thorized to pay said allowances at this time," | 123, 129, 130; Parsons v. Parsons, 67 Ind. and be also authorized to pay a dividend to 489, 499; Candy v. Hanmore, 76 Ind. 125, the creditors. The court thereupon, without 128; Good v. Goodwin, 48 In 584, 589 ; notice to anybody, made an order fixing the Pfeiffer v. Crane, 89 Ind. 485. 489; Hord v. allowances of the receiver and of his attor- Bradbury, 156 Ind. 30, 32, 59 N. E. 31; Shuney "in full for services," authorizing cer- ey v. Lambert, 53 Ind. App. 567, 571, 102 tain settlements to be made, and directing N. E. 150. the payment of a dividend to creditors, asi  Assuming, without deciding, that the
For other cases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes
orders of allowance in question were orders, 7. Witnesses 266–Refusal to permit cross. for the payment of money from which an ap examination as to matters pertaining to inpeal would lie, as suggested by the case of vestigation of accused's connection with lar. Bossert v. Geis, 57 Ind. App. 384, 389, 107
ceny held reversible error. N. E. 95, such an appeal could only be taken Refusal to permit cross-examination as to by filing the transcript and assignment of er- what was said and done at and during the inrors, as well as the appeal bond, within 30 vestigation testified to, as to accused's connecdays from the date of the order appealed tion with a larceny. held reversible error, as
being abuse of discretion, from. Section 1392b, Burns' Supp. 1921; section 2, c. 251, p. 741, Acts 1921.
8. Criminal law 552(3)–To sustain convic.
tion circumstantial evidence must be conclu.  The facts alleged in the answer to ap
sive, and must exclude every reasonable hy. pellant's assignment of errors, if true, tak
pothesis of innocence. en in connection with the facts shown by
To sustain conviction circumstantial evithe record, are sufficient to bar this appeal, and appellant's demurrer to the answer in dence must be conclusive, and must exclude
every reasonable hypothesis of innocence. bar of his assignment of errors is overruled.
9. Criminal law On 1159(6)-Absence of es
sential link in chain of circumstantial evidence requires court of last resort to hold evidence insufficient to sustain conviction.
Absence of an essential link in the chain of HENRY V. STATE. (No. 24720.)
circumstantial evidence requires court of last
resort to hold evidence insufficient to sustain (Supreme Court of Indiana. March 10, 1925.) conviction. 1. Criminal law Sa 946–Cause for new trial 10. Criminal law am I 159(1)-When finding or
verdict is error of law reviewable and subdeemed waived or abandoned on failure to
ject to correction stated. cite authorities, or to present alleged error. Cause for new trial is deemed waived of able and subject to correction on appeal, where
A finding or verdict is error of law reviewabandoned on failure to cite authorities, or to it is not supported by evidence, or by evidence present alleged error.
necessary to support an essential fact neces2. Larceny w65-Evidence held insufficient sary to support the verdict or finding.
to sustain conviction of petit larceny based 11. Criminal law Om327—Commission of act on stealing chickens.
constituting offense, and its commission by Evidence held insufficient to sustain convic person charged, must be proved to sustain tion of petit larceny based on stealing chickens. criminal charge.
Commission of act constituting offense, and 3. Criminal law ewa 1153(4)-Witnesses em 267 its commission by person charged, must be
-Extent of cross-examination permitted is proved to sustain criminal charge.
Appeal fro Circuit Court, Johnson CounExtent of cross-examination permitted is ty; Fremont Miller, Judge. within sound discretion of trial court, abuse of which is the only ground for reversal.
William Floyd Henry was convicted of pet
it larceny, and he appeals. Reversed, with 4. Witnesses O269 (1)-Opening of subject instructions to grant new trial. on examination in chief opens it to full and
Featherngill & Drybread, of Franklin, for detailed investigation on cross-examination,
appellant. Opening of subject on examination in chief
U. S. Lesh, Atty. Gen., for the State. opens it to a full and detailed investigation on cross-examination.
GEMMILL, J. Appellant was prosecuted 5. Witnesses em 268 (2)-Unfavorable infer. upon an indictment charging him with grand
ence, drawn from facts elicited from witness, larceny. The charge was that, on July 17, opens door for admission on cross-examina. 1923, in Johnson county, he did then and tion of knowledge of witness tending to rebut there unlawfully and feloniously steal, take, such inference.
and carry away of the personal goods and Unfavorable inference, drawn from facts chattels of Ossie Brann 50 chickens of the elicited from witness, opens door for admis- value of $40. The trial was by jury and sion on cross-examination of knowledge of wit- he was found guilty of petit larceny. A moness tending to rebut such unfavorable infer- tion for a new trial was overruled and judg.
ment rendered on the verdict. 6. Witnesses 266-Cross-examination of
 It is assigned as error that the trial witness is absolute right, denial of which on court erred in overruling appellant's motion material matter is reversible error.
for a new trial. The motion for same conCross-examination of witness is an abso- tains nine separate and distinct causes, lute right, denial of which on a material mat- Causes numbered 1, 2, 3, 4, 5, and 6 are alter is reversible error.
leged errors of the court in excluding cer. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) tain testimony therein set forth, offered on port, where he boarded, and also said he was Cross-examination. Cause numbered 7 is an going to Bargersville. He was told that he alleged error of the court in giving to the would have to show that he had been at jury of its own motion instructions num- Southport all night. This he agreed to do. bered 1 to 16, inclusive, and in giving each He took Mr. Cutsinger, who was an officer, of said instructions. Cause numbered 8 is in his automobile, and the other two men that the verdict of the jury is contrary to followed in another automobile, and all went law. And cause numbered 9 is that the ver- to Southport, where Mr. Cutsinger talked to dict of the jury is not sustained by sufficient Mrs. Decker, with whom the appellant boardevidence. Cause numbered 7 for a new trial, ed, away from the appellant, who did not which is the giving of instructions, is not talk to her. After that he was allowed to urged in this appeal, and, by reason of fail- go, and was not placed under arrest at ure to cite authorities or to present the al- that time. A day or so later the appellant leged error, it must be deemed waived or took his automobile to a garage in Greenabandoned.
wood and had the left rear tire removed and  The evidence, on behalf of the state, another put in its place, and had the car was wholly circumstantial. From same it cleaned out. The party who did the work appears as follows: At 1 o'clock on the said that the appellant asked him to hide morning of the day named in the indictment the tire or to put it away for him where one Ossie Brann who lived three-fourths of no one could get it, and keep it for him, and a mile southwest of Greenwood was awak- said that in the car he found some yellow ened by the barking of her dog. She got up, feathers, some straw, and a sack. The apwent to the front door and looked south, pellant was a barber in Southport, and when as she heard an automobile running in seen on that morning he was coming from that direction. The automobile went south the direction of the place he lived. When about a quarter of a mile, turned around, stopped by said parties and questioned by and came back, and when it got even with them he was pale and nervous. Most of her home she turned on the porch light and the stolen chickens, some dead and some saw that it was a Ford roadster. She in- alive, were found later in the day in two vestigated and discovered that about 50 sacks a short distance from the Brann res. chickens owned by her of the value of $40 idence along the side of the road. The witwere gone. She notified two parties over ness who removed the tire from the appelthe telephone of her loss, and she and her lant's automobile testified that he had seen husband got in their automobile and went two other cars with the same kind of tire, in the direction she had seen the Ford road- which was on the left rear wheel of appelster go. They could see the light of an au- lant's roadster. tomobile in the distance, but never caught Appellant claims in the first cause for new up with it. Later Clarence Brann, her hus- trial that error of law occurred at the trial band, and some neighbors inspected the au- in this, that the court refused to permit the tomobile tracks in the road where the au- witness Sam Cutsinger to answer a questomobile she had seen turned around. They tion on cross-examination propounded to him found that the tire on the left rear wheel as a witness by defendant's counsel, as to made an impression that resembled the let- whether or not he said to Leander Browning ter H with the long parts out, or a horseshoe and Clarence Brann, in the presence of the or a muleshoe. The other three tires made defendant in Southport, that Mrs. Decker impressions that resembled the letters I and said that he (the defendant) was at home all O, one end of the letters being very dim. night. Causes numbered 3, 4, and 5 were Said Clarence Brann and two neighbors, Sam alleged errors in the court refusing to perCutsinger and Leander Browning, the for- mit the said witness to answer other simimer being an officer, followed the tracks of the lar questions in regard to what he might said automobile to a point about four miles have said or the appellant might have said at southwest of the Brann home and back to a that time, and cause numbered 6 is an alcemetery one-half mile north of where Mrs. leged error in the court refusing to permit Brann lived. While the said parties were Leander Browning, a witness, to answer a at that place on the highway about 7 o'clock like question as to what he might have said in the morning, the appellant drove past in at that time. The state claims that there a Ford roadster, He came from the direc was not error in refusing to permit said wittion of Greenwood which was east and went nesses to answer said questions propounded south. Noticing a similarity in the tracks to them, as same were not proper cross-exmade by the Ford roadster which he was amination. driving to the tracks which they had been  It is a settled rule of practice in this investigating, they followed him for a few state that the extent of the cross-examinamiles and caught up with him, when he stop tion permitted is within the sound discretion ped at the side of the road on account of of the trial court and only an abuse of this his automobile being out of gasoline. The discretion is cause for reversal on appeal. appellant was asked where he had been all And in Ewbank's Indiana Trial Evidence, $ night. He replied that he had been at South- 155, it is stated that, in order to justify a