194 Ind. 626 | Ind. | 1924
An indictment in two counts was returned jointly against appellant and William Ford. The first count charged robbery, alleging that the defendants “feloniously, forcibly, by violence and putting in fear” stole $1.05 from the person by Cless Ferguson. The second count charged larceny, alleging that defendants “did feloniously take, steal and carry away” $1.05 belonging to said Ferguson. Being tried by the court, without a jury, both defendants were found “guilty of petit larceny in the second count of the indictment”, and were sentenced to imprisonment at the Indiana State Farm for a term of one year. §2270 Burns 1914, Acts 1907 p. 86; §9926h Burns’ Supp. 1921, Acts 1919 p. 81.
Appellant has taken a separate appeal, and has assigned as error the overruling of his motion for a new trial, by which he challenged the sufficiency of the evidence to sustain the finding. The prosecuting witness testified that he had known appellant fifteen years and
Being found guilty only of the lesser offense and not guilty of robbery, we need not determine, whether the ■ evidence would have justified the suggested inference in deciding that appellant was guilty of robbery, if the trial court had drawn it; but the sole question presented for our consideration is whether or not there was evidence to support an inference that appellant stole or participated in stealing the money from Ferguson, as alleged in the second count of the indictment. Clearly there was not. The mere fact that appellant was with Ford when Ferguson met and spoke to them, and that he walked out to the curb and then out toward the car track, and “never opened his mouth” nor said anything when Ford took the money, and that he and Ford then “went on either side of the alley”, as Ferguson boarded a street car, taken in connection with the undisputed fact that the parties had been acquainted for many years and had been together at different times, fails to prove that he acted with a felonious intent to assist Ford in stealing Ferguson’s money, or that he had any part in taking it away from Ferguson. Merely being present when another commits a crime is not enough to make a person guilty of the offense so committed, if he is not shown to have conspired with his companion to commit it, nor to have assisted in its commission, nor to have counseled, en
The judgment is reversed, with directions to sustain the motion of appellant for a new trial.