The appellants, John W. Crum and John C. Evans, were convicted of grand larceny, and ask for a reversal of the judgment against them, elaiming, first, that the evidence was insufficient. The evidence was chiefly that of the prosecuting witness, which was corroborated by that of other witnesses.
It appears that Evans was president of a bank in Jonesboro, and Crum was an insurance agent in Marion. The prosecuting witness was a farmer named Haines living near Marion, and was related by marriage to Evans. On August 22, 1896, Evans and his , wife called to pay a visit to Haines, who lived with his mother. Evans and his wife stayed all night. During the evening Mrs. Evans spoke quite freely of how well her husband had got along, that he was making money rapidly; and said that farming was a pretty slow business, and if one wished to make money fast he must do something else. The evidence of Haines, the prosecuting witness, then continues: “After the women folks had retired for the night, Evans hitchéd over his chair nearer mine and began to talk on the money question, said that he had a scheme on foot by which if he had the money he could- go to New York City and get a large amount of good money, * * * said that he could get five for one and that it was good money that would pass anywhere. * * * Told about a friend he had there that made this offer to him.” That his friend in New York “was connected with the Continental Insurance Company.” That the insurance company “had a man here at Marion that
Other evidence goes to show Crum’s full participation in the scheme, and that both appellants conspired to deprive Haines of his money, without any purpose on their part of even giving him the counterfeit money they pretended to be able to get. It was all a detailed contrivance to play on- the cupidity and simplicity of Haines and thus obtain his money and at once appropriate it to their own use.
Counsel endeavor to argue that the crime committed was that of obtaining money under false pretenses, and not larceny. The facts, however, show that Haines parted with the possession only, and not with the title to his money; it was to be returned to him in thirty days at the farthest, or five to one should be given him for it in the New York money. They .did neither. Larceny may be committed not only by taking property from another without his knowledge, but also by a trick, by means of which the owner’s property is taken by some false token or other deception. If there is a present purpose to obtain possession of the property of another by such deception, and to at once appropriate the property to the use of the wrongdoer, there is larceny. Indeed, in such a case, there is in reality a taking without the knowledge of the owner, for, by means of the trick or deception prac* ticed, his knowledge is clouded, so that he loses possession of his property without realizing that it has been taken. But, in such a case, the title remains with him, so that the crime is larceny, and not obtaining property under false pretenses. In the latter case, both the possession and the title go to the wrongdoer; the owner freely parts with both, either for some worthless consideration, or because in some way he is persuaded to do so by false representations. Had ap
It has frequently been held that larceny may be committed by wrongfully obtaining possession of property by trick, as well as by securing it by stealth. See Fleming v. State, 136 Ind. 149; March v. State, 117 Ind. 547; Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, and authorities cited in those cases. In Gillett, Crim. Law (2d ed.), section 540, the rule in such cases is well stated as follows: “Where the defendant, with a preconcerted design to steal the property, obtains possession of it by fraud, the taking is larceny, for the reason that, as the fraud vitiated the transaction and left the title in the original owner, he still retained a constructive possession of the goods, and the conversion of them by the defendant is such a trespass to that possession as makes larceny.” Other authorities showing that larceny may be committed by trick or deception are: Huber v. State, 57 Ind. 341, 26 Am. Rep. 57; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123; People v. Rac, 66 Cal. 423, 6 Pac. 1, 56 Am. Rep. 102; People v. Shaw, 57 Mich. 403, 24 N. W. 121, 58 Am. Rep. 372; United States v. Murphy, 48 Am. Rep. 754; Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. 843. It is true, that where there is a contract for the loan of money, or where money is otherwise voluntarily paid to another, on account of some misrepresentation, the crime may be that of obtaining money under false pretenses, and not larceny. Such cases were: Perkins v. State, 65 Ind. 317, and Kellogg v. State,
A part of instruction No. 6, given by the court, is objected to. It was as follows: “Larceny, however, may exist although the possession of the-alleged stolen goods is obtained with the consent of the owner, if that consent is procured by deception and with the intent not to return the same, but to appropriate the same and deprive the owner thereof and of the remedy for their loss.” Counsel do not deny that this instruction is correct, so far as it goes, but they say that there should have been added to the conditions stated the further condition of “a felonious intent to steal and appropriate the property to taker’s use.” It may be questioned whether the felonious intent to appropriate the property to the taker’s use is not sufficiently expressed in the instruction as given; but however that may be, the instruction as given is correct, and if counsel desired additional or more definite instruction on this point they should have asked for it.
In instruction No. 12, given by the court, the jury, in conformity with the provisions of the statute, section 2006, Burns’ B. S. 1894 (1933, E. S. 1881), were told that if they found the defendants guilty as charged, it would be their duty to inflict as a part of the punishment “disfranchisement for any determinate period.” Appellants contend that this was error, for the reason that larceny is not an infamous crime, and as the constitution, article 2, section 8, provides that, “The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible any person convicted of an infamous crime,” therefore,
In 1 Wharton Crim. Law (10th ed.), section 22a, it is said: “At common law, ‘infamy’ was held to attach to all crimes, a conviction of which impressed such a moral taint on the perpetrator as was supposed to require his incapacitation as a witness and the suppression of his political rights. Infamy, in this sense, includes treason, felony, and the crimen falsi; and a conspiracy to commit an infamous offense partakes of the character of the offense at which it is aimed.”
In Black’s Law Dictionary at page 618 it is said that “A crime punishable in the state prison or penitentiary, with or without hard labor, is an infamous crime, within the provision of the fifth amendment of the constitution [of the United States] that ‘no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.’ ” Citing Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. 777. And see Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935. The same rule holds in New York, as said in the same connection, by Mr. Black, citing 2 Rev. St. (p. 702, section 31), p. 587, section 32.
In 4 Am. and Eng. Ency. of Law, 644, it is said, that
In 1 Bishop Crim. Law (7th ed.), section 974, the ■ author says that larceny is an infamous crime, “because it is a felony.” So, also, he says, “is the knowingly receiving of stolen goods; and so, at the common law, is even petit larceny.”
It is true that in Glenn v. Clore, 42 Ind. 60, citing Pruitt v. Miller, 3 Ind. 16, it was said that “Not all felonies render the perpetrator of them infamous.” But the statement in Pruitt v. Miller, supra, was based upon a statute under the old constitution, R. S. 1843, p. 999, section 79, and p. 719, section 261. Those decisions, moreover, had relation to the competency of witnesses, as affected by such crimes. The legislature, however, has power at all times to regulate the competency of witnesses; and has, in fact, made almost all persons competent, except the insane, children lacking capacity, and certain persons having confidential relations with either of the parties, sections 504, 505, 514, 1867, Burns’ R. S. 1S94 (496, 497, 506, 1798, R. S. 1881). The decisions cited are, therefore, for several reasons, no longer, if ever, .controlling in the matter here under consideration.
It is clear, then, as we think, particularly from the fact that at common law all felonies, including larceny, were infamous crimes, that the legislature had ample authority under the constitutional provision cited, to provide “disfranchisement for any determinate period” as a part of the punishment to be imposed for the crime of larceny; and, consequently, that the court did not err in so instructing the jury. .
Appellants complain, finally, that the court erred in the admission of evidence of other like crimes committed by them about the time of committing the crime here charged. This evidence was quite proper in order to show the intention with which the acts charged as criminal were committed. The appellants were not tried or punished for the other offenses committed;'but by the evidence given of such like transactions by them about the same time the jury were the better able to apply the evidence given as to the offense charged. Appellants’ own counsel have themselves tried hard to show that the acts charged in the indictment were not criminal, or, even if crimina,1, that the crime was other than that for which they were indicted. In such equivocal cases it is proper to show the nature of the offense charged, and also the intention with which it was committed by referring to other like acts committed by the same persons. The evidence objected to showed that appellants were expert and unscrupulous confidence men, engaged in the business of fleecing the unwary, by stealing their money under pretense of giving them “other money, five to one, just as good.”
As said in 1 Bishop Crim. Law (7th ed.), section
In 3 Rice Ev., section 155, citing American and English authorities, it is said: “Although evidence offered in support of an indictment for felony be proof of another felony, that circumstance does not render it inadmissible. If the evidence offered tends to prove a material fact, it is admissible, although it may also tend to prove the commission of another distinct and separate offense.” And it is there added that, “The principle is, that all the evidence admitted must be pertinent to the point in issue; but if it be pertinent t.o this point, and tends to prove the crime alleged, it is not to be rejected, though it also tends to prove the commission of other crimes, or to establish collateral facts.”
It is true that such evidence of similar offenses is more frequently received in cases of forgery and counterfeiting than in any others. This, however, is only because in such cases the commission of other like acts tends more frequently to show the intent with which the act charged was done. In principle there can be no reason why in any case the intent with which an act was done may not be proved by competent and pertinent evidence, even though proof may thus incidentally be made of other offenses. See, also, the able dissenting opinion of Elliott, J., in Strong v. State, 86 Ind. 208, which we think correctly expresses the law on this question. The decision of the court in
There can be no doubt that this case was fairly tried. No more detestable crime could be committed against the good order of society. The acts done by appellants made up a combination of cheating, lying, stealing, and breach of confidence, tending to make all honest, simple-minded people suspect every polite stranger they meet with, and even to distrust their own friends and neighbors. Such a crime against society should be most severely punished. That the president of a bank and an insurance agent should combine to impose upon a simple-minded, hard-working man, unfamiliar with the intricacies of business, but adds to the iniquity of the offense. The truth is that the three years or five years imprisonment to which appellants were respectively sentenced, was not an adequate punishment for their offense; and if a new. trial should be awarded for any reason, and such reason could be a legal cause for a new trial, it would be only that the punishment might be increased. The fact that the credulous, simple-minded prosecuting witness was himself willing to aid in circulating counterfeit money, does not lessen the guilt of his tempters, any more than did the weakness of the denizens of Eden excuse the villainy of the arch fiend who corrupted them.
Judgment affirmed.