— At the February term, 1880, of the -Benton Circuit Court, the appellant and two other persons were jointly indicted, by the grand jury of said court and term. The indictment contained four counts, of which the first three charged the appellant and the other defendants therein named with the crime of robbery, and the fourth count charged them with an assault, and an assault and battery, with the intent to commit a robbery. The appellant moved the court to quash each count in the indictment, which motion-was overruled, and to this decision he excepted. He then moved the court to quash the indictment,-as to the felonious intent in each count thereof, which motion was overruled, and to this ruling he excepted. He also moved the court to require the prosecuting attorney to elect upon which count of the indictment he would go to trial, which motion was also overruled, and to this decision he excepted. Upon arraignment the appellant entered a plea of not guilty to the indictment, and was awarded a separate trial.
The issues joined were tried by a jury, and a verdict was returned finding the appellant guilty of an assault and battery, with the intent to commit a robbery, as charged in the fourth count of the indictment, and assessing his
The appellant has here assigned, as errors, inter alia, the following decisions of the circuit court:
4. In overruling his motion to quash the fourth count of the indictment;
5. In overruling his motion to quash the felonious intent charged in the fourth count of the indictment;
6. In overruling his motion to require the prosecuting attorney to elect upon which count of the indictment he would go to trial; and,
7. In overruling his motion for a new trial.
The first, second and third errors, assigned by the appellant, we need not and do not set out, as these errors relate to the decisions of the court in overruling his motions to quash the first three counts of the indictment. In the verdict of the jury, as we have seen, the appellant was found guilty as charged in the fourth count of the indictment; while, as to the first three counts of the indictment, the verdict was entirely silent. In legal effect, this silence was tantamount to a verdict of not guilty, in the appellant’s favor, upon the first, second and third counts of the indictment. Weinzorpflin v. The State, 7 Blackf. 186; and Bittings v. The State, 56 Ind. 101.
Therefore, even if the first three errors assigned by the appellant upon the overruling of his motions to quash the first three counts of the indictment were well assigned, yet, as he was virtually acquitted of the charges in these three counts, these errors would not be available to him for the reversal of the judgment below, and need not be considered.
The fourth alleged error presents for our decision the
“Pourth. And the grand jurors aforesaid, upon their oath aforesaid, further present and charge, that on the said 20th day of December, A. D. 1819, at and in the said county of Benton and State of Indiana, the said Joseph Yatro, James Riley and Henry W. Dickinson did then and there unlawfully, feloniously, forcibly and violently make an unlawful attempt to commit a violent iuj ury upon the person of the said Hansey Hamilton, (they, the said Joseph Yatro, James Riley and Henry W. Dickinson then and there, jointly and severally, having the present ability to commit a violent injury upon the person of said Hamilton,) and him, the said Hamilton, did then and there unlawfully, feloniously, forcibly and violently, and in a rude; insolent and angry manuer, touch, strike, beat, push, bruise and wound, with intent then and there and thereby, unlawfully, feloniously, violently and forcibly, by violence, to rob, steal, take and carry away from the person of said Hamilton and against his will, the money of said Hamilton, consisting of divers United States treasury notes, national bank notes, and divers silver coins of the United States, then and there on the person of the said Hamilton being, and of the value of fifty dollars; all contrary to the form of the statutes,” etc.
The first objection urged by the appellant’s counsel to the sufficiency of the fourth count of the indictment, in argument, is its duplicity, in this, that it charged the appellant, in technical terms, with au assault, and also an assault and battery, with the felonious intent, etc. We are of the opinion, however, that this objection afi'orded no sufficient ground for quashing the fourth count of the indictment ; for the defect complained of is one -which could not and did not “ tend to the prejudice of the substantial rights of the defendant upon the merits.” 2 R. S,
The. appellant’s counsel also claim, that the motion to quash the felonious intent, as charged, ought to have been sustained, upon the ground that “ the denominations of the money are not averred.” This point was determined otherwise, in the recent ease of Buntin v. The State, 68 Ind. 38, wherein it was held, that in an indictment for an assault and battery, with intent to commit a robbery, it was not necessary to describe the particular property which the defendant intended to take from the person upon whom the assault, or assault and battery, was committed, with such felonious intent. In the ease cited, it was said by 'Worden, J., speaking for the court: “ In such case it could not, with propriety, he said that the assailant intended to take any particular article : and, therefore, it would be sufficient to allege an intent to take goods and chattels, without a more particular description of them.”
The alleged error of the court, in overruling the appellant’s motion to require the prosecuting attorney to elect upon, which count of the indictment he would go to trial, is expressly waived by his counsel, who concede that this matter was wholly within the discretion of the trial court. Snyder v. The State, 59 Ind. 105.
Under the alleged error of the court, in overruling the appellant’s motion for a new trial, the first point made by his counsel and pressed with much earnestness, is, that the verdict of the jury was not sustained by sufficient evidence and was contrary to law; because, they say, “ there was no evidence whatever introduced to show in what year the crime charged was committed.” The evidence is in the
The precise day, month and year, on which the offence was charged to have been committed, need not to have been shown; but it was'necessary, that the evidence should clearly show that the prosecution had been commenced within the term of two years after the commission of the offence, and had not been ban’ed by the statute of limitations. Proof of the month, and day of the month or week, would not be sufficient, in the absence of evidence of the year, or, at least, showing that the commission of the alleged offence was within the term of two years next preceding the commencement of the prosecution. Hatwood v. The State, 18 Ind. 492; Baker v. The State, 34 Ind. 104; and Buckner v. The State, 56 Ind. 207.
■ A number of other points have been presented and discussed by the appellant’s counsel, which we need not now consider and decide, as the judgment will have to be reversed for the insufficiency of the evidence to sustain the verdict. On this ground, we think that the motion for a new trial ought to have been sustained.