70 Ind. 317 | Ind. | 1880
— In tliis case, tlie indictment charged, in substance, in the third count thereof, that the appellant, Amanda Lampliier, on the 29th day of July, 1878, at Jennings county, Indiana, divers articles of personal property, gold and silver coins, national bank notes, and United States treasury notes, commonly called “ Greenbacks,” each and all particularly described and the values thereof alleged, and all of the aggregate value of $976.40, of the personal goods and property of William Siddell, then and there being found, did feloniously steal, take and carry away, contrary to the form of the statute, etc.
The indictment contained four counts. The appellant’s motion to quash the indictment was overruled by the court, and to this ruling she excepted; and, on arraignment, her plea was that she was not guilty as charged in the indictment. The cause was tried by a jury, and a verdict was returned
The following decisions of the circuit court ai’e assigned as-errors, by the appellant, in this court:
1. In overruling her motion to quash the indictment ;
2. In overruling her motion to compel the State to elect on which count of the indictment it would go to trial and offer evidence;
3. In excluding the evidence offered by her, as' set out in the first cause for a new trial; and,
4. In overruling her motion for a new trial.
We will consider and decide the several questions arising under these alleged errors, in the order of their assignment.
1.. In their verdict, the jury found, as we have seen, that the appellant was guilty as charged in the third count of the indictment; but; as to the 'other counts, the verdict was entirely silent in regard to the guilt or innocence of the appellant of the felonies charged therein. It has been held by this court, that such a verdict, as to- those counts of the indictment not 'mentioned therein, is- equivalent to an express verdict that the defendant is not guilty of the felonies charged in such counts. Weinzorpflin v. The State, 7 Blackf. 186 ; and Bittings v. The State, 56 Ind. 101. In this court, therefore, we may properly regard the third count of the indictment as the only' indictment 'against the appellant; and as she was, in legal effect, acquitted below of the felonies charged in the first, second and
"We have given a summary of the facts stated in the third count of the indictment; and we are clearly of the opinion, that the appellant’s motion to quash the indictment was correctly overruled, as to said third count thereof. It is not claimed, nor does it appear on the face of the third count, that the grand jury had no legal authority to inquire into the offence charged theréin ; and certainly it does not appear that the facts stated therein do not constitute a public offence, or that the third count contains any matter which, if true, would constitute a legal justification of the offence charged, or other legal bar to the prosecution. None of these matters appearing on the face of the third count of the indictment, the court was authorized, we think, under the provisions of section 101 of the criminal code, to overrule the motion to quash the indictment. 2 R. S. 1876, p. 399 ; Jarrell v. The State, 58 Ind. 293.
2. The second error complained of is, that the court refused to compel the State to elect on which count of the
3. The third alleged error is purely and simply a cause for a new trial, and as such it is not assignable, in this court, asan independent error; and, when thus assigned, it presents no question for our decision. This point of practice must be regarded as settled by the decisions of this court. Buskirk Practice, 126, and cases cited ; Freeze v. DePuy, 57 Ind. 188; and Walls v. The Anderson, etc., .Railroad Co., 60 Ind. 56.
4. In her motion for a new trial, the appellant assigned a large number of causes therefor. Without setting out at length these causes, we will consider and decide the important questions presented and discussed by the appellant’s counsel, which fairly arise under the alleged error of the court, in overruling her motion for a new trial. The third cause assigned for a new trial was in substance this : That Samuel Mcllroy, one of the jurors of the jury which tried this cause, was not a competent juror, under the law, in this, that he was neither a householder nor a freeholder of said Jeqnings county, at the time of his service as such juror. In section 1 of “ An act to prescribe the qualifications of petit jurors in the several courts of this State,” approved March 8th, 1873, which act was then and still is in force, it was and is provided “ That any person who is either a householder or freeholder and a qualified votei’, in any county of this State, Shall be qualified to serve as a petit juror in any court in such county in which such person shall be such householder or freeholder and qualified voter.” Acts 1873, p. 159 ; 2 R. S. 1876. p. 31. It is clear, we think, from the record of this cause, that Samuel
We are of the opinion, that this third cause for a new trial was well assigned, and that, for this'cause, the appellant’s motion therefor ought to have been granted.
The eighth cause for a new trial, assigned by the appellant, was error of the court in giving the jury, of its own motion, instructions numbered from oné to'ten, inclusive.
The Siddell referred to in this instruction is manifestly the same William Siddell whose personal goods and property the appellant is charged, in the third count of the indictment, to have feloniously stolen, taken and carried away. It seems to us, that the court clearly erred in giving the jury the part, above quoted, of the fourth instruction, in so fax’, at least, as it told the jury, that if the appellant and the wife of said Siddell, acting coxxjointly * pursuant to an agreement previously made between them to take the property of said Siddell, or of others in his possession, took possession of said property, removed it from where said Siddell had left it, and carried it away with the intention of defx’auding the owner, whether said Siddell dr another, and of converting said property to the use of the appellant and of the wife of said Siddell, then the appellant was guilty of larceny. In this instruction, the jury were told virtually, that the appellant was guilty of a larceny, even though it might appear that she had not feloniously taken and carried away the goods, or that she had not converted said goods to the use of herself and the wife of. said Siddell, without his consent and against his will. In other words, the instruction is entirely silent in regard to the felonious intent, or to the animus furccndi, which was abso
It is the law, we think, that the wife of Siddell could not, upon the facts stated in the above quoted instruction, be ’found guilty of larceny for the taking, removing and cairying away of her husband’s personal goods, with the intent stated in said instruction. The wife can not be guilty of larceny, for stealing the goods of her husband, when she lives with him and may be said to have possession of his goods, by reason of the marriage relation. The State v. Banks, 48 Ind. 197.
Such being the law in regard to the wife of Siddell, in the case put by the court in the above quoted instruction, we are of the opinion that the appellant, even if the felonious intent or animus furandi had been imputed to her, could not be found, guilty of a larceny, for acting conjointly with the wife of said Siddell, in taking, removing . and carrying away the personal goods of said Siddell, with the intent expressed in said instruction. The court erred, we think, in giving said instruction to the jury ; and, for this error of law, the motion for a new trial ought to have been sustained.
The appellant’s counsel have elaborately discussed the question of the sufficiency of the evidence to sustain the verdict. But, as the conclusions we have reached upon some of the points already considered will lead tb the reversal of the judgment below, and perhaps to a new trial, it is unnecessary, and it may be improper, for us to consider now and pass upon the question of the sufficiency of the evidence. Some other alleged errors of law, occurring at the trial, have been complained of in argument, by the appellant’s counsel; but, as these supposed errors may not occur again, upon a new trial of the cause, we do not now consider them.
The judgment is reversed, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion. The clerk of this- court will issue the proper notice for the appellant’s return to the sheriff of Jennings county.