Hart v. StateHart v. State
- Reporters:
- , ,
- Before:
- McCabe
The appellant and two others were indicted in the court below in seven counts, six of them charging the defendants with burglary, аnd the *586other charging them with larceny. On a trial by a jury, they were fоund guilty of burglary, and judgment was rendered accordingly, over aрpellant’s motion for a new trial. The appellant оnly appeals.
Overruling appellant’s motion for a new trial is assigned as the only error complained of; and thе only error alleged in the motion for a new trial that is urged fоr a reversal is the following instruction, given by the court to the jury: “If yоu find from the evidence beyond a reasonable doubt thаt the goods described in the indictment, or a portion of them, were stolen, and that such stolen property was found in thе exclusive possession of the defendants, within a short time after the larceny was perpetrated, such possession imposes on the defendants the duty and burden of explаining their possession of said goods; and if they have failed to satisfactorily account as to how they came by the stolen property, or have given a false acсount of how they came into possession of such stolen property, the lav/ presumes that the defendants stole such property, and this presumption is strong enough to justify you in finding them guilty.”
The objection to this instruction is that the jury are told by it that the рresumption arising from the facts enumerated therein is a presumption of law, whereas the appellant contends that it is a presumption of fact simply; and the learnеd counsel for the appellant goes into a lengthy and interesting argument in support of that contention. The Attornеy-General, on behalf of the State, goes into an equally interesting argument that the instruction is a correct enunciаtion of the law. But we are of the opinion that the questiоn is not before us, and hence we ought not, and do not, deсide it.
The instruction had reference to appellant’s guilt of larceny alone, and had no reference tо his guilt of *587burglary. Because it says, if tbe facts enumerated be fоund to be true beyond a reasonable doubt, “tbe law prеsumes that the defendants stole such property, and this prеsumption is strong enough to justify you in finding them guilty.” But they were not found guilty of larceny, and hence the instruction, no matter how erroneоus it was, did not harm the appellant. Larceny and stealing gоods were no part of the crime of burglary of which appellant was found guilty. Section 2002, Burns’ R. S. 1894 (1929, R. S. 1881). The jury were fully and correctly instructed as to what it takes to constitute burglary as well as larceny.
The giving of an erroneous instrhction even is not avаilable for the reversal of the judgment in a criminal case, where it appears that the substantial rights of the defendant were not prejudiced thereby. Stewart v. State, 111 Ind. 554. The substantial rights of appellant were not prejudiced by the instruction as to larceny even if erroneous, because he was acquitted as to the charge of larceny, and found guilty of burglary.
The judgment is affirmed.