52 Ind. 462 | Ind. | 1876
Indictment against the appellant, charging him with stealing a pair of shoes, of the property of Charles I. Moffett. Plea, not guilty; trial by jury; verdict, guilty, fine one dollar, imprisonment in the State’s prison one year, disfranchisement one year. Motion for new trial overruled; appeal.
The insufficiency of the evidence to support the verdict, and errors of law in giving and refusing instructions to the jury, are the main points urged on behalf of the appellant.
“ My name is Charles I. Moffett. I live in Center township, Vanderburgh county, seven and a half miles from Evansville. On July 15th, 1876, I came to Evansville, and bought a pair of shoes from James S. Eicker, of the firm of H. & J. S. Eicker, Main street, Evansville, between Second and Third streets, for one dollar and fifty cents, and paid for them. They are the same shoes as those exhibited in court now. I know them by the mark put in them by George Newett, policeman. After buying the shoes, I left them at Eicker’s for two or three hours. "While they were there, I went out and took too much beer. I next saw the-shoes next day, last Sunday, at police headquarters. I think I took the shoes from Eicker’s to Kasson’s saloon with me, but I can’t swear it positively. I think I saw defendant at Kasson’s saloon; can’t swear positively; can’t tell where I parted with the possession of the shoes; can’t swear positively that I had the shoes at Kasson’s saloon. It all occurred at Vanderburgh county, Indiana. I recognized the shoes, after they wrere left at police headquarters, by the way the laces were tied.”
Cross-examined. “The shoes, when bought, were taken out of a box with other shoes similar in it. I recognized the shoes afterwards by the way Mr. Eicker tied the knot, of the leather laces. These shoes exhibited in court could not have been the shoes, unless the manner of tying them had been imitated purposely. Two pairs were not likely to-have been alike. I do not know what became of the shoes; was under the influence of beer.”
Henry Ayres testified:
“Am chief of police in Evansville. I saw the defendant-first last Saturday evening. One Muscowitz, second-hand dealer on Fourth street, came to me, and I went with him. The defendant was trying to sell him the shoes exhibited
Charles Ludwig testified:
“I am clerk for H. & J. S. Ricker. Saw defendant there; Ayres brought him there. Defendant said he'bought the shoes of me. I did not remember it. I did not sell them to him. I never saw him before Ayres brought him there. I saw J. S. Ricker sell the shoes exhibited in court, to Moffett. These are the identical shoes. Moffett put some mark in the shoes; I saw him do it. Moffett came back to Ricker’s store, two or three hours after he bought the shoes, and took the shoes away with him; I handed them to him. He was intoxicated whe» he came back and took the shoes.”
B. Speer testified:
“On Water street, Saturday last, at my store, I bought shoes (here in court) from defendant, at one dollar. He told me that the police had arrested him, but said they had told him to go, he might sell them if he wanted to.”
Cross-examined. “ I tied the laces in the shoes, as they are now. Defendant was open about the matter; the shoes were wrapped in a paper.”
Here the State rested, and the defendant produced George Hewett, a competent witness, who testified:
“ I put the letter M in the shoes, this morning, in pencil. I think I only put three M’s in them.” Here witness was shown the shoes, and identified the M’s he put in. “There are four in them, as shown to me now. Moffett has had the shoes since I marked them.”
This was all the evidence given in the case, except some statements made by Moffett, called out by the appellant, which were not substantially different from his testimony, and therefore need not be given in this opinion.
After the introduction of the evidence and the close of the argument, the appellant asked the court to instruct the jury as follows:
1. “ If the jury believe from the evidence that Charles I. Moffett, while under the influence of liquor, or otherwise, lost the shoes mentioned in the indictment, then you must acquit the defendant, even though you find that the defendant afterwards had possession of them.”
The court refused to give this instruction, as asked, but gave it in a modified form, as follows:
“If the jury believe from the evidence that Charles I.
We think the court committed no error in refusing the ■ above instruction as asked, nor in giving it as modified, for reasons which will subsequently more fully appear in this opinion.
The second instruction asked by the appellant was in the following words:
2. “ If yon find from the evidence that no one but said Moffett testified in regard to the taking of said shoes, and if you believe that said Moffett does not know and cannot explain how he parted with their possession, then you must acquit the defendant, even if it appeal’s that he afterwards had possession of them.”
The court refused to give this instruction, “but read to the jury, in lieu thereof,” from the opinion of this court, in the case of Smathers v. The State, 46 Ind. 447, our views upon a similar question, as expressed on page 451. "We need not enlarge this opinion by copying within it what we decided in that, to which we still adhere. In this view — and we think it covers the whole case—there was no error in refusing the second instruction, and none in reading from a former opinion of this court.
The record then informs us, that “the court further read to the jury the following, taken from BicknelFs Crim. Practice, p. 331:
“ A person may be guilty of larceny by taking and converting to his use lost goods found by him. If he knows the owner, it is clearly larceny; as where a carpenter finds money secreted in a bureau given him to repair, if he convert it to his own use, it will be larceny. So, if a hack-man convert to his own use a parcel, left by a passenger in. his coach by mistake, it is larceny if he knew the owner, or if he took him up or put him down at any particular
In our opinion, this instruction expresses the law, carefully and clearly stated; and it seems to us, in this case, that the court committed no error, either in giving or refusing instructions to the jury.
A more difficult question for us to decide is, does the evidence fairly sustain the verdict? ¥e must adhere firmly to the principle of law, that the possession of property alleged to have been stolen is not a presumption of guilt against the possessor, unless a previous larceny of the property is established by proof; and the presumption of guilt will not arise-until the larceny is proved by some proper evidence. In this case the evidence, aside from the conduct of the appellant, tends only very slightly' to prove a larceny of the shoes.. The condition of Moffett, the owner of the shoes, was such,, at the time, that he might very easily have mislaid, forgotten,, or lost them, without remembering anything about them;; and the same condition would make it very easy for any one-to steal the shoes from him without his knowledge. But the-conduct of the appellant, after he had obtained possession of the shoes, is open to very grave suspicions. His inability to• readily account for how, when and where he obtained them, the transaction being so recent; his ultimate assertions that he bought them of Ludwig, which Ludwig denies; and his.
We áre of the opinion that the conviction is not a safe one under the law. ■
The judgment is reversed; cause remanded, with instructions to grant the motion for a new trial, and for further proceedings. •
Order for a return of the prisoner.