117 Ind. 547 | Ind. | 1889
The appellant prosecutes this appeal from a judgment declaring her guilty of larceny.
She was tried and convicted under the name assigned her in the record, which is the name she assumed while in the city of Indianapolis, but it is not her true name. She is a resident, of a town in a distant State. She first visited the store of Born & Co., in Indianapolis, on the 7th or 8th day of March, 1888,. and looked at some carpets and curtains, but did not then bargain for them. Either at that time or at another visit, on the 15th, she told one of the salesmen that her name was; Mrs. D. F. Kennedy; that she was from Noblesville, and had an income of $150 per month ; that her husband was a.
The facts support the inference that the accused formed a fraudulent scheme to steal the goods before she secured possession of them. It is, indeed, impossible to infer any other conclusion. Not only do the facts require this conclusion, but they warrant the further inference that the appellant had formed a felonious intent to deprive the owners of their goods and appropriate them to her own use before she began the negotiations which enabled her to obtain possession of them. The false statements made by her, the devices resorted to by her to deceive the owners of the goods, and the shipment of them to Iowa, so soon after she obtained pos
The owners of the property did not intend to transfer title, for they expressly stipulated that it should remain in them. They did not, in fact, intend to deal with the accused at all. They did not even intend to deliver possession of the goods to Mrs. Dickson or Mrs. Spaits, of Iowa, but to Mrs. Kennedy, of Indianapolis. There was, therefore, really no effective transfer of possession to the accused. Alexander v. Swackhamer, 105 Ind. 81. She fraudulently induced the owners to believe that they were negotiating with Mrs. Kennedy, and were delivering the goods to her, when, in fact, as the accused knew, there was no such person in existence.
The doctrine that there must be a trespass in order to constitute a larceny is an antiquated legal fiction, which had, at most, a very slender support from the authorities, and which is now thoroughly exploded. The better and sounder doctrine is, that, where a fraudulent device or scheme is resorted to for the purpose of divesting the owner of title and possession, the offence is larceny. The better reasoned cases authorize the conclusion that the filmy gauze which separated cases where there was a fraudulent device from those in which there was an actual trespass, no longer obstructs or obscures the judicial vision. A stronger and better rule has supplanted the one which gave force to a foundationless distinction and an unsubstantial abstraction.
Counsel assume that this is simply the case-of a purchaser
A defendant can not obtain a new trial on the ground of newly discovered evidence solely by producing a letter exculpating him from the charge, and swearing that it was written by a person by whom the letter purports to be signed. If the rule were, otherwise, justice might readily be defeated by the defendant himself manufacturing testimony. Doubtless facts might be added which would make a case for a new trial, but such facts are not present here. The letter referred to in the appellant’s affidavit would not be admissible in evidence, and there is no sufficient showing that the testimony of the alleged writer can be obtained.
The verdict is well supported by the evidence.
Judgment affirmed.