Randolph v. State

| Ind. | Jun 1, 1860

_ _ Davison, J.—

t. ■ Prosecution for receiving stolen goods, commenced January 6, 1859.

The indictment charges that George Randolph, on the 28th of October, 1855, at, &c., one set of double harness, of the valué of 30 dollars, the personal goods of one William Selby, before then unlawfully and feloniously stolen, &c., feloniously did buy, receive, conceal, and have; he, the said George, then and there well knowing the said goods to have been feloniously stolen, &c. And that he, the said George, has been absent from the state, and has concealed the fact of the crime, and has so concealed himself that process could not be served upon him, for the space of two years since the commission of the offense.

The defendant moved to quash the indictment; but his motion was overruled, and he excepted.

Verdict against the defendant, upon which the Court, having refused a new trial, rendered judgment.

Upon the trial, the state propounded to one Bevwgton, a witness, this question: whether there was a conspiracy existing among certain persons for the purpose of committing this species of crime. He answered that there was such a conspiracy. The state then asked the same witness whether the defendant was connected with that conspiracy. To which he answered—George was connected with that conspiracy, he knew, because he was one of the main men. These answers were resisted by the defendant, but admitted by the Court, who, at the time, told the jury to consider them in relation to. the concealment.

We have a statute which says: “If any person who has committed an offense, is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.” 2 B,. S. p. 363, § 13.

It would be difficult to perceive how the testimony admitted could, in any degree, tend to prove the concealment pointed out in the statute. Evidently, it was not pertinent to the charge that the defendant so concealed himself that process could not be served upon him. But the Court, by its instruction, intended to say that the answers of 1he witness should be considered by the jury in relation to the fact of the concealment of the crime. And this being the purpose for which the testimony was admitted, its admission was, no doubt, erroneous; because 1here is, in point of law, no proper charge in the indict-merit to which the admitted testimony can be applied. True, the indictment alleges, generally, that defendant has concealed the fact of said crime; but this was insufficient —the particular acts done by him, whereby he produced such concealment, should have been alleged. See Jones v. The State, at the present term ⁽¹⁾. And there being no proper averment to that effect, the testimony admitted was, in our opinion, irrelevant, and may have misled the jury.

A. Ellison, for the appellant. J. E. McDonald, for the state.

The judgment must be reversed.

Per Curiam.—

The judgment is reversed with costs. Cause remanded, &c.

(1) Ante, 120.