Jones v. State

14 Ind. 120

• Court: Indiana Supreme Court
• Decided: May 28, 1860
• Status: Published

Opinion

Davison, J.

This was a prosecution for grand larceny, commenced April 19, 1859.

The indictment charges that the defendant, on the 3d of September, 1856, at the county of Bartholomew, one mare, of the value of 150 dollars, of the personal property of George W. Mounts, then and there being found, .feloniously did steal, take, lead, drive, and ride away. And further, that the defendant, from the said 3d of September, 1856, till the 1st of January, 1859, did conceal the fact of the larceny aforesaid.

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

As has been seen, this prosecution was commenced April 19, 1859, more than two years after the larceny is alleged to have been committed. The indictment was, therefore, barred by the statute of limitations, unless the averment that defendant concealed the fact of the crime is effective to prevent such a result.

Section 13 of the statute to which we have referred, provides thus: “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 R. S. p. 363, § 13.

As we construe this provision, the words “conceals the fact of the crime,” must be held to mean the concealment of the fact that a crime had been committed, unconnected with the fact that the accused was the guilty perpetrator; and further, the enactment evidently intends that the concealment of the fact of the crime must be the result of positive acts done by the accused, and calculated to prevent a discovery of the fact of the commission of the offense of which he stands charged.

This exposition being correct, and we think it is, the inquiry arises, is the averment, simply that the defendant “did conceal the fact of the larceny,” sufficient, without alleging any specific act done or means used by him to produce such concealment?

In Bowles v. The State, 13 Ind. R. 427, the charge was, that Bowles, having unlawfully brought a negro woman named Polin into this state, did unlawfully encourage her to remain in the state, contrary, <fcc. Held, that the charge of encouragement, though it follows the statute, is too vague.. The particular acts of encouragement should have been stated. This decision, it is true, relates to the particular acts which constitute the offense; still the principle upon which that case was decided may well apply to the point under consideration; because it seems equally essential that the positive acts which constitute the concealment of the fact of the crime should be stated. Unless the state, by her pleading, apprises the accused of the acts of concealment upon which she intends to rely, he may not be prepared to resist the effort to deprive him of his right to set up the statute of limitations in bar of the prosecution.

F. T. Hord, for the appellant. J. E. McDonald, Attorney General, for the state.

We are unanimously of opinion that the motion to quash should have prevailed.

The defendant having pleaded not guilty, the cause was submitted to a jury, -who found for the state; and the Court, having refused a new trial, rendered judgment, &c. For the error in its refusal to quash the indictment, this judgment must be reversed.

Per Cwriam.

The judgment is reversed. Cause remanded, &c.