163 Ind. 555 | Ind. | 1904
Appellant was charged by affidavit and information with the larceny of one coat and three vests. The ownership was laid in the Lake Shore & Michigan Southern Railway Company. There was a verdict of guilty, and, over a motion for a new trial, appellant was sentenced to imprisonment in the Indiana Reformatory, and was also fined and disfranchised.
It is claimed by appellant’s counsel that there was no evidence of ownership as charged, and ibis therefore urged that the court should have given a peremptory instruction, which was tendered by appellant, to return a verdict of not guilty.
It appears from the evidence that. on December 28, 1903, the firm of Iiart, Schaffner & Marx shipped a box containing one coat and three vests, with other clothing, from their factory in Rochester, New York, to their wholesale house in Chicago, Illinois. The goods were shipped in a car marked “N. Y. & C., 11,051.” On the night' of January 1, 1901, this car was broken open, in the railroad yards at Elkhart, Indiana, while en route to Chicago, and
In dealing with the question as to the effect of the evidence, we have thus far laid no stress on the confession of appellant. If it were competent for the jury to make use of the self-disserving statement which the evidence shows that he made to the witness Lards relative to the company’s custody of the goods, there could be no question as to the evidence warranting a conviction. We are mindful of the rule that the extrajudicial confession of a defendant is not alone sufficient to make out the corpus delicti, and that as applied to a prosecution for larceny it is required that there must be proof of the commission of the' particular larceny charged. We deny, however, that such is the operation of the rule that the confession of the defendant can not in any case be used to accelerate the force of inferences concerning the fact of ownership, or that his confession can not be considered, along with proper corroborative evidence, in determining whether the fact of the commission of the crime charged has been made out.
Concerning the doctrine as t'o the corpus delicti, Professor Greenleaf says: “It is obvious that on this point no precise rule can be laid down, except that the evidence ‘ought to be strong and cogent,’ and that innocence should
In considering the evidence concerning the ownership of the clothing, the fact is not to be forgotten that appellant had authority to cross-examine the witnesses called bv the State, and that he had the right to the compulsory process of the court to procure the attendance of witnesses. Although an ultimate fact may rest only upon slight evidence offered by the party having the 'burden of proof, yet if the opposite party has it in his power readily to show the
Of course, appellant was not t'o be subjected to any adverse inference from his failure to testify, but in other respects it was proper to regard him as an ordinary party. Coupling the confession of appellant with the other evidence relative to the fact of the ownership in the railroad company charged to have been the owner in the affidavit and information, and considering the entire lack of opposing evidence, we think that it may be said that the jury was not only warranted in finding the averment concerning ownership proved, but, indeed, that any other finding would have been wholly unjustifiable.
Complaint is made as to the giving of certain instructions. While in, some particulars there appears to be a basis for verbal criticism of said instructions, yet considering the charge as a whole we are of opinion that the jury was not misled. Furthermore, the result was plainly right upon the evidence, and in such a case, even if there were an erroneous instruction exhibited by the record, we should not be authorized to reverse. §1964 Burns 1901.
Judgment affirmed.