193 Ind. 237 | Ind. | 1922
Appellant, in the court below, was charged by affidavit, tried and convicted of receiving stolen goods, as defined by §2273 Burns 1914, Acts 1905 p. 584, §381. Upon the finding of the jury that appellant was guilty as charged, and that the articles so received by her were of the value of $250, the court rendered a judgment that she make her fine to the State of Indiana in the sum of $1, and that she be imprisoned in the Indiana Womens’ Prison for a period of not less than one nor more than fourteen years, etc. Appellant’s motion for a new trial was overruled. She perfected an appeal to this court and is here seeking to reverse the judgment of the trial court, alleging as error the overruling of her motion to quash the affidavit, the overruling of her motion to require the prosecuting attorney to separate the affidavit into counts, and the overruling of her motion for a new trial.
Appellant, in support of her motion to quash, insists that the affidavit which was in one count charged, more than one offense, that is to say, the articles alleged to have been stolen on or about August 30, 1920, were each valued at $1.50 to $50. Hence the claim that these articles, thirty-five in number, each of the value of less than $25, and three separately valued at $25 or more, constituted separate crimes.
The statute alleged to have been violated reads: “Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, taken by robbers, embezzled, or obtained by false pretense, knowing the sum (same) to have been stolen, taken by robbers, embezzled, or obtained by false pretense, shall, if the goods be of the value of twenty-five dollars or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than twenty-five dollars shall suffer the punishment prescribed for petit larceny.” §2273 Burns
The statute above quoted, in defining the crime, uses the words “anything of value”, but the punishment is measured by the aggregate value of the goods bought, received and concealed, or which the party charged aided in concealing. Booker v. State (1907), 151 Ala. 97, 44 So. 56. As said in Semon v. State (1902), 158 Ind. 55, 57, “In this state receiving stolen goods, knowing them to have been stolen, is an independent, substantive offense. The particular thing denounced by the statute is the receiving of stolen goods knowingly.” It is the doing of the act prohibited by the statute that constitutes the offense.
The charge here is that appellant,' on or about August 30, 1920, received, concealed and aided in concealing stolen goods, knowing them to have been' stolen. For aught appearing in the affidavit, she received all of the goods mentioned therein at one time, and therer fore a motion to quash on the ground of duplicity was properly overruled.
Appellant, in support of her motion for a new trial, insists that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law, for the reason: (1) that the evidence shows that Ralph Caldwell, who is alleged to have stolen the goods, was in the employ of the George W. Graham Company, and as such employe, had access, possession and control of the goods alleged to have been stolen, and therefore, if guilty of any offense, it was embezzlement; (2) that the evidence shows that appellant was the wife of Ralph Caldwell, the alleged thief from whom she received the stolen goods, and therefore a finding of guilty was contrary to law, for the reason that there was no evidence tending to show that she was not under the coercion of her husband at the time the crime was alleged to have been committed. •
As we read the evidence, Ralph Caldwell was employed by the Graham company as janitor for the second floor of the Graham store, and as a truck driver and to deliver goods to purchasers. He had nothing to do with the sale of the goods or the care thereof, other than the delivery of such as were sold by others, and it does not appear that he appropriated any of the goods entrusted to his care for delivery. Consequently, we hold that the claim of embezzlement is not well taken. Colip v. State (1899), 153 Ind. 584, 74 Am. St. 322.
The attorney-general takes the position that because of the statute annulling the disabilities of married women, and because the statutes of this state make no distinction between a feme covert and a feme sole regarding crimes, punishment, and the procedure in criminal actions, appellant was not entitled to the benefit of the presumption of coercion on the part of her husband. It must be kept in mind that even in this day of advanced rights, duties and liabilities of married women, the common law with respect to them prevails in this state, except as changed and modified by statute. It was not the theory of the
While at common law the wife alone is responsible for an offense committed by her without the presence or coercion of her husband, (Pennybaker v. State [1831], 2 Blackf. 484), yet without a statute, as has Arkansas, (Edwards v. State [1872], 27 Ark. 493), Georgia, (Bell v. State [1893], 92 Ga. 49, 18 S. E. 186), and some other states, making the wife amenable as a feme sole for a crime committed within his presence, the common law controls.
It may be said that where the wife acts voluntarily she ought to be held liable whether her husband was present or not, or if she acted under compulsion she ought to be exempt from punishment, not because of the marital relation, but like any. one else acting under such circumstances. However plausible this argument may seem, still the fact remains that the legislature of this state has never seen fit to change the common law in this respect. Hence, as the common law prevails in this state as to all matters not changed or modified by statute, we hardly think it incumbent upon the court to legislate, when it appears that the modern, as well as the older, authorities sustain the general principle of law that, when a married woman is indicted for a crime (excepting treason or murder) committed in the presence of her husband, the presump
In Commonwealth v. Daley, supra, p. 13, it is said: “No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where the wife did not act in the direct presence of her husband or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all,' is whether she acted under his coercion or control, or of her own free will independently of any coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist.”
In State v. O’Neil, supra, that court, in speaking of civil and criminal cases and the common judgment of humanity as to what is right and just in allowing exceptions to statutory definitions, well said: “For instance, in this state, although there is no statutory recognition of a coverture as a defense on the part of a married woman for a crime committed in the presence of her husband, we have said that' the common-law exception in that respect is applicable.”
We are not unmindful of the statute making married women liable for torts committed by them, nor of the statute making both the wife and husband jointly liable for a tort committed by the wife at the direction of the husband or in his presence with his consent. §§7857, 7858 Burns 1914, §§5120, 5121 R. S. 1881. These statutes furnish no aid to the state in this case. True, they modify the common law, but the procedure and character of the result sought in an action for tort is widely different from an action to subject the doer of a criminal act to legal punishment.
In the instant case there is no evidence tending to show that appellant was the active moving spirit, either in inducing her husband to steal the goods or in concealing them after they were stolen. On the contrary, when the owners of the stolen goods sought information in regard to them, she gave a truthful account and offered no objection to a visit and search of the home where the stolen goods were kept.
The undisputed evidence in this case warrants the legal inference that the stolen property was found in the possession of the husband and not in the possession
In conclusion we hold that the verdict is not supported by the evidence, and therefore, contrary to law.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.