State v. Helvin

Adams, J.

I. The defendant contends that the indictment should have been set aside because not found upon the testimony of witnesses examined before the grand jury, but only upon the minutes of testimony taken upon the preliminary examination, which examination resulted in the defendant’s discharge. The indictment purports to. have been found upon the testimony of witnesses examined before the grand jury, and we have not discovered any sufficient evidence that it was not so found. Besides, this point does not appear to have been made below, either by motion for a new trial, in arrest of judgment, or otherwise.

J. CRIMINAIi inary examiiiliunutes'wftii clerk. II. It is further objected that the. minutes upon the preliminary examination were not filed with the clerk. 0in-attention is called to sections 4289 and 4293 of Code; but the latter refers to minutes of testimony upon which the indictment is found, and the former to minutes of testimony taken upon the preliminary examination, where the defendant is held to answer. In this case the defendant, upon such examination, was discharged.

III. The defendant insists that none of the witnesses examined in behalf of the state upon the trial were examined before the grand jury, and that no notice was given that such witnesses would, be called. But their names are indorsed upon the back of the indictment as those who were examined before the grand jury.

__________ evidence of'' value. IV. The robbery is alleged to have consisted in taking from the person of one Wagner certain gold coins and silver, coins. It is insisted that the evidence failed to show that they were genuine, and failed to show their value. The person robbed testified that he *291 was robbed of $245 in gold, mostly in twenty-dollar gold pieces, but partly in ten and five-dollar pieces. He also testified that he was robbed of $45 or $50 in silver dollars. In our opinion this is sufficient. The fair meaning of the testimony is that the witness was robbed of gold and silver coins of the denomination and value above mentioned.

3. INSTRUCtions: repe•quired. Y. The defendant complains of the insufficiency of the instructions. He insists that, at most, the evidence established only a probability of guilt, and that the ” 1 ~ ° jury should have been instructed “ that the evidence should be of that certain character as to prove guilt so clearly and conclusively as to destroy every reasonable theory upon which the defendant could be innocent.” The instruction given by the court upon this, point is in these words: “Before you will be justified in convicting the defendant, you must be satisfied of his guilt beyond a reasonable doubt.” The instruction given is in the unsual form, and, in our opinion, covered the ground fully.

ness of required m criminal ease. VI. The defendant complains of the insufficiency of the instructions in other respects. But we have to say that they seem to be correct as far as they went. If the defendant desired further instructions he should iiave asked them. It is true, we might reverse in a criminal case for mere failure to instruct, if we should be satisfied that such failure resulted in depriving the defendant of a fair trial. But we are not thus satisfied in this case.

5. CRIMINAL law ¡measure of punish<Setnsupreme eourt. YII. The defendant asks us to reduce the judgment on the ground that it is excessive. He was sentenced to the penitentiary for eight years. It is said that the ~ ° , court was influenced by improper considerations, ^ i r ' as sh°wa by the language used at the time the sentence was pronounced. As to this we have to say that we have no proper evidence that the court used the language attributed, and no proper evidence that the language was not justified, if used. Besides, the punishment is less *292 than might have been inflicted, even aside from the considerations from which it is said the court acted. "We see no abuse of discretion, and cannot interfere.

Some other objections were raised in the motion for a new trial. As to these we must be allowed to say that we have examined the'entire record, and find no error.

Affirmed.