182 Ind. 112 | Ind. | 1914
Appellant was tried and convicted of grand larceny. On appeal he has assigned error in overruling his motion for a new trial and under this assignment insists that the court erred in giving to the jury on its own motion instructions Nos. 10 and 11, and in refusing to give instructions Nos. 5, 10 and 17 tendered by appellant.
Instruction No. 11 given by the court reads as follows: “The charge in the indictment that the defendant William Waldon feloniously took and carried away the money, as well as each of the other material averments in the indictment, may be established by either direct or circumstantial evidence. If the evidence fairly shows that the defendant, Waldon, while traveling on an east bound passenger train on the Southern railway, and soon after leaving Mt. Carmel, Illinois, on the d.ay named, observed that one Oscar ITochmeister had in his possession a large amount of money, bills and notes, which circulate as money, the money mentioned in the indictment, that thereupon the defendant conferred with other persons and united and combined with such other persons for the purpose of feloniously taking and stealing said money from the said Iloehmeister, when opportunity offered; that pursuant to and in furtherance of such unlawful purpose the other persons engaged in such unlawful combination on the approach
It is appellant’s contention that this instruction tells the jury that if the evidence fairly shows certain facts it could not acquit the accused, but we can not agree that it is to be so construed. It rather tells the jury, in effect, that if it should find that appellant was one of the conspirators in the taking of the money, it could not acquit him on the ground that he did not take the money from the prosecuting witness personally; in other words, that the act of the coeonspirator in taking the money was the act of appellant. This is the law. Eacock v. State (1907), 169 Ind. 488, 503; Musser v. State (1901), 157 Ind. 423, 433.
We deem it unnecessary to set out herein even the substance of the instructions tendered by appellant and refused by the court. Most of them properly stated the law but, so far as correct, they were fully covered by the instructions given. The trial court was not required to reiterate the several propositions of law applicable to the ease nor to adopt the language used by counsel for appellant. The instructions given were clear and stated the law with fairness, and there is no contention that the verdict of the jury was not warranted by the evidence.
Judgment affirmed.
Note. — Reported in 104 N. E. 300. As to the possession of recently stolen property as evidence of larceny, see 12 L. R. A. (N. S.) 199. As to evidence competent against conspirators, see 3 Am. St. 482. See, also, under (1) 25 Cyc. 142; (2) 25 Cyc. 152, 151; (3) 38 Cyc. 1711.