Brown v. State

• Decision Date: 29 April 1980
• Docket Number: No. 1-1178A337,1-1178A337
• Parties: Cecil BROWN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 901

403 N.E.2d 901

Cecil BROWN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1178A337.

Court of Appeals of Indiana, First District.

April 29, 1980.

Steve Barber, George C. Barnett, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Janis L. Summers, Gordon E. White, Jr., Deputy Attys. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Defendant-appellant Cecil Brown was convicted by jury trial in the Vanderburgh Circuit Court of conspiracy to commit a felony, to-wit: second degree arson. Brown was sentenced to prison for a term of not less than two nor more than fourteen years. He now appeals his conviction, alleging numerous errors.

We affirm.

STATEMENT OF THE FACTS

The evidence most favorable to the State reveals that in the summer of 1974, Cecil Brown was engaged in the operation of night clubs or taverns in Evansville, Indiana. Brown approached Raymond Reed and contracted with Reed to have a competing establishment, the Golden Record, burned down. Shortly thereafter Reed hired Joseph Byrne and William Gibbs to actually set the fire. Early in the morning of August 21, 1974, Byrne and Gibbs set fire to the building in which the Golden Record was located, resulting in its destruction.

Brown, Reed, Byrne, and Gibbs were later arrested and charged in a two-count information with second degree arson ¹ and conspiracy to commit a felony, ² to-wit, second degree arson. Reed and Byrne testified against Brown pursuant to plea agreements with the State. Brown was acquitted of the second degree arson charge, but he was convicted under the conspiracy charge. He now appeals that conviction.

ISSUES

1. Whether the trial court erred in overruling Brown's motion to dismiss the Third Amended Count II of the information.

2. Whether the trial court erred in admitting evidence of out-of-court statements of co-conspirators.

3. Whether the trial court erred in overruling Brown's objection to Raymond Reed's competency to testify.

4. Whether the trial court erred in excluding a tape-recorded telephone conversation between Brown and William Gibbs.

5. Whether there was a fatal variance between the proof and the charge.

6. Whether the jury's verdicts were irrationally inconsistent.

7. Whether the trial court erred by intimating its opinion of the weight of accomplice testimony.

8. Whether the trial court erroneously instructed the jury regarding competency and credibility.

DISCUSSION

Issue One

Brown contends that Third Amended Count II of the information is fatally defective and that the court's overruling of his motion to dismiss addressed thereto constitutes reversible error. Brown argues that Third Amended Count II of the information was fatally defective in three particulars: (a) failing to allege material and essential elements of the crime of conspiracy to commit second degree arson in not charging that Brown conspired to "wilfully and maliciously " set fire to a building; (b) failing to set out Brown's role in the conspiracy; and (c) not being signed by the prosecuting attorney.

It is true that the Third Amended Count II does not charge that Brown "wilfully and maliciously " conspired to set fire to a building. It is also true that the statute governing this prosecution which defines the crime of second degree arson provides insofar as applicable to this case:

"Any person who wilfully and maliciously sets fire to or burns, or causes the setting of fire to or burning, or who aids, counsels or procures the setting of fire to or the burning of any barn, garage, stable or other building, finished or unfinished, occupied or unoccupied, not a part or parcel of any dwelling house, rooming house, apartment house or hotel, or any shop, storehouse, warehouse, factory, mill or other building, or any church, meetinghouse, courthouse, workhouse, school, jail or other public building or any bridge, finished or unfinished, occupied or unoccupied; such being the property of another, * * * shall be guilty of arson in the second degree and shall, upon conviction thereof, be imprisoned in the state prison not less than five (5) years nor more than ten (10) years, to which may be added a fine of not to exceed two thousand dollars ($2,000)." ³ (Emphasis added.)

Third Amended Count II of the information in this case charges:

" * * * that JOSEPH BYRNE, WILLIAM GIBBS, CECIL BROWN & RAYMOND REED on or about the 21st day of August A.D., 1974, at said County and State as affiant verily believes: did unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose and with the unlawful and felonious intent to set fire to and burn a certain building, not a part and parcel of any dwelling house, rooming house, apartment house or hotel, situated at 122 S.E. 4th Street, City of Evansville, County of Vanderburgh, State of Indiana, such building being the property of another person, to-wit: Louis F. Wilson, Jr. and Rudolph A. Hoefling d/b/a The Golden Record, Inc., and Rosemarie Investments, Inc., in violation of I.C. 35-1-111-1, as found at Burns Ind. Stats. Anno. Sec. 10-1101 (1956 Repl.), and I.C. 35-16-1-2, as found at Burns Ind. Stats. Anno. Sec. 10-302 (1974 Supp.). * * * " (Emphasis added.)

We agree with Brown that a charge of conspiracy to commit a felony under the conspiracy statute applicable to this case, ⁴ must set forth all of the elements essential to establish the felony which was the object of the conspiracy. Kelly v. State, (1936) 210 Ind. 380, 3 N.E.2d 65; Genett v. State, (1925) 197 Ind. 105, 149 N.E. 894; Williams v. State, (1919) 188 Ind. 283, 123 N.E. 209; Allen v. State, (1915) 183 Ind. 37, 107 N.E. 471. Brown asserts that the failure to allege that the named defendants conspired to "wilfully and maliciously " set fire to and burn the building in question renders the charge fatally defective under the foregoing rule. We disagree.

Third Amended Count II charged that the named defendants "did unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose, and with the unlawful and felonious intent to set fire to and burn a certain building * * *" (Emphasis added.) We believe, for reasons hereinafter set forth, that the allegation that the defendants "unlawfully, knowingly and feloniously " conspired "with the unlawful and felonious intent to set fire to and burn" the building is tantamount to alleging a conspiracy to "wilfully and maliciously " set fire to and burn the building.

In Fox v. State, (1979) Ind.App., 384 N.E.2d 1159, 1166-67, n.16, a first degree arson case, Judge Shields stated:

" * * * The statute, I.C. 35-16-1-1, uses the terms 'wilfully and maliciously.' A 'willful ' setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally, involuntarily, or negligently done, and implies that the act must be done knowingly and according to a purpose. . . . A 'malicious ' burning is an act done with a condition of mind that shows a heart regardless of social duty and bent on mischief, evidencing a design to do an intentional wrongful act toward another without any legal justification or excuse. * * *" (Emphasis added.) (Citations omitted.)

"Willful " has been defined as follows:

"Proceeding from a conscious motion of the will; voluntary. . . .

Intractable; having a headstrong disposition to act by the rule of contradiction. . . . Obstinate; perverse. . . .

Intending the result which actually comes to pass; designed; intentional ; not accidental or involuntary. . . .

Conscious; knowing ; done with stubborn purpose, but not with malice. . . .

Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful ; without legal justification. . . . " (Citations omitted.) (Emphasis added.)

Black's Law Dictionary 1773-74 (Rev.4th ed. 1968).

The term "maliciously" is defined in the following terms:

"Imports a wish to vex, annoy, or injure another, or an intent to do a wrongful act, and may consist in direct intention to injure, or in reckless disregard of another's rights. . . ." (Citation omitted.) (Emphasis added.)

Black's Law Dictionary, supra, at page 1111.

The same source defines "malicious " as "(c)haracterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse. . . ." (Citation omitted.) (Emphasis added.). Black's Law Dictionary, supra, at page 1110. Further, a "malicious act " is said to be "(a) wrongful act intentionally done without legal justification or excuse; an unlawful act done willfully or purposely to injure another. . . ." (Citation omitted.) (Emphasis added.) Black's Law Dictionary, supra, at page 1110.

Having thus examined definitions of the terms "wilfully" and "maliciously," we turn to an examination of definitions of the terms "unlawfully" and "feloniously."

"Unlawfully" is defined as "illegally; wrongfully." Black's Law Dictionary, supra, at page 1706. The term "feloniously" is defined by the same law dictionary, at page 744, as follows:

"Of, pertaining to, or having, the quality of felony. . . .

Means proceeding from an evil heart or purpose done with a deliberate intention of committing a crime. . . . Without color of right or excuse. . . . Malignantly; maliciously. . . . Wickedly and against the admonition of the law. . . . With a felonious intent." (Emphasis added.) (Citations omitted.)

The word "feloniously" is equivalent to "purposely" or "unlawfully." Mann v. State, (1933) 205 Ind. 491, 186 N.E. 283, 187 N.E. 343. Further, it has been said that the word "feloniously" is equivalent to the word "unlawfully," State v. Anderson, (1885) 103 Ind. 170, 2 N.E. 332, and that "the use of the word 'unlawfully' precludes all legal excuse...