Cole v. State
| Decision Date | 18 December 1975 |
| Docket Number | No. 1--1274A186,1--1274A186 |
| Citation | 167 Ind.App. 310,338 N.E.2d 651 |
| Parties | Terry COLE and Joe Coyle, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants-appellants Terry Cole and Joe Coyle appeal their convictions on two counts of conspiracy to commit a felony, to-wit: burglary, presenting three issues for review:
(1) Whether they were placed in jeopardy twice for the same offense.
(2) Whether the penalty clause of the Indiana conspiracy statute is unconstitutional.
(3) Whether defendants should have been given credit for pre-conviction incarceration.
The record reveals that in the early morning of March 6, 1974, defendants were observed by two members of the Salem Police Department as they unsuccessfully attempted to gain entry into the Farmers-Citizens Bank in Salem by trying to pry open its back door. As the police officers watched silently, defendants abandoned their attempt to enter the bank and attempted to break into the rear door of Apple's Drug Store located in the same alley as the back door of the bank.
At that time, the officers approached, apprehended, and arrested the defendants. They were later charged, tried and convicted of (1) conspiracy to commit a felony, to-wit: burglary of Apple's Drug Store and (2) conspiracy to commit a felony, to-wit: burglary of Farmers-Citizens Bank.
Initially, defendants argue that their being charged with, tried for, and convicted of two separate conpiracies is contrary to IC 1971, 35--1--111-1, Ind.Ann.Stat. § 10--1101 (Burns 1956), to Article 1, Section 14 of the Constitution of Indiana, and to the double jeopardy clause of the Fifth Amendment. Under this issue defendants propound three separate arguments which shall be addressed in order of their presentation.
First, defendants argue that it was contrary to IC 1971, 35--1--111--1, supra, to charge them with two separate conspiracies. The statute provides:
'Conspiracy to commit felony.--Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars ($25.00) nor more than five thousand dollars ($5,000), and imprisoned in the state prison not less than two (2) years nor more than fourteen (14) years.'
Defendants argue that since the two separate conspiracies with which they were charged, tried, and convicted arose from the same transaction, they have been placed in jeopardy twice for the same offense. Citing Lynn v. State (1934), 207 Ind. 393, 193 N.E. 380, defendants maintain that a person is guilty of but one conspiracy where he conspires to commit multiple crimes. They further argue that in the case at bar, their acts constituted only one conspiratorial relationship.
We do not dispute defendants' allegation that where a conspiracy to commit multiple crimes is formed there is but one offense committed. However, as stated in Robertson v. State (1952), 231 Ind. 368, 108 N.E.2d 711, the statute defining conspiracy to commit a felony creates two separate offenses:
'The statute defining conspiracy to commit a felony creates two separate offenses: (1) Uniting or combining with any other person or persons for the purpose of committing a felony; and, (2) knowingly uniting with any other person or persons, body, association or combination of persons whose object is the commission of a felony or felonies.' (Footnote omitted.)
In our opinion, defendants herein were charged with two separate violations of the first of the offenses rather than a single violation of the second. We find no error in this procedure. The ultimate question of whether defendants' acts constituted a single conspiracy to commit two Next, defendants urge that it was reversible error to conduct a joint trial of the separate causes. This argument, however, having not been raised in defendants' motion to correct errors must be deemed waived on appeal. Ind. Rules of Procedure. Trial Rule 59(G); Lewis v. State (1975), Ind.App., 332 N.E.2d 107.
burglaries or whether the acts constituted two separate conspiracies to commit separate burglaries is to be resolved by the trier of fact. Where, as in the case at bar, reasonable men could differ on that question it is not within the province of this court to substitute its judgment for that of the fact finder.
Thirdly, defendants maintain that they suffered two convictions for one offense in violation of the double jeopardy clauses of the Constitutions of Indiana and the United States. This argument, however, is inextricably intertwined with defendants' first argument under this issue, that being that their acts constituted one conspiracy. Where, as in the case at bar, two separate criminal offenses are committed in succession, it is not contrary to the concept of double jeopardy to charge, try and convict for both offenses.
Secondly, defendants assert that the Indiana conspiracy statute found at IC 1971, 35--1--111--1, supra, is unconstitutional in that the penalty imposed thereunder is not proportionate to the crime committed. Defendants complaint is that a conviction of conspiracy to commit the crime of second degree burglary carries a sentence of not less than two (2) nor more than fourteen (14) years, whereas a conviction of second degree burglary carries a sentence of only not less than two (2) nor more than five (5) years. This seeming inconsistency is the foundation of defendants' assertion of unconstitutionality.
The precise argument which defendants advance was resolved by our Supreme Court in Lane v. State (1972), 259 Ind. 468, 288 N.E.2d 258. The following language of Justice Hunter from Lane is dispositive of defendants' argument:
'The conspiracy statute, IC 1971, 35--1--111--1, (Ind.Ann.Stat. § 10--1101 (1956 Repl.)), provides for a penalty of two to fourteen years upon conviction. The burglary statute, IC 1971, 35--16--4--4(b), (Ind.Ann.Stat. § 10--701(b) (1956 Repl.)), provides for a penalty of two to five years following a conviction for second degree burglary. It is appellant's contention that he cannot receive a greater sentence for conspiring to commit second degree burglary than he would have received for the actual commission of the offense. In support of his position, appellant relies upon Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815 and Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498. In both of those cases, this Court decided that a person cannot receive a penalty for the commission of a lesser included offense which is greater than the penalty he would have received for the commission of the greater offense. The legal reasoning set forth in Dembowski and Hobbs is applicable to the case at bar only if the crime of conspiracy to commit a felony is a lesser included offense of the particular felony in question. It is well established that an offense will be considered a lesser included offense only when it is impossible to commit the greater offense without first having committed the lesser. See, House v. State (1917), 186 Ind. 593, 117 N.E. 647; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405; Hobbs v. State, supra. Applying this test to the crime of conspiracy, it must be recognized that a material element of conspiracy is the unified or concerted action of two or more persons. The unified or concerted action of two or more persons is not an element of second degree burglary.
The distinction between these crimes was recognized in Durke v. State (1932), 204 Ind. 370, 378, 183 N.E. 97, 100, where we stated:
'(I)t must be said that the essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as 'conspiracy to...
To continue reading
Request your trial
-
Wilson v. State
... ... We need not rest our decision on that ground, however. Wilson did not assert lack of counsel at the time of the line-up in his Motion to Correct Errors, and has therefore waived the issue on appeal. Ind.Rules of Procedure, TR 59(G), Cole v. State (1st Dist.1975), Ind.App., 338 N.E.2d 651, 654 ... 3 To the extent that the separate concurrence by Judge White espouses a prerogative of a trial judge to nullify a jury verdict by serving as a 'thirteenth juror', the author of this opinion would reiterate the views contained in his ... ...
-
Ridgeway v. State
... ... Whether there is one conspiracy or several is a question for the jury. United States v. Morrow, (5th Cir. 1976) 537 F.2d 120; United States v. Varelli, (7th Cir. 1969) 407 F.2d 735; Cole v. State, (1975) 167 Ind.App. 310, 338 N.E.2d 651. In Cole, decided under the prior criminal code, the court held it was for the trier of fact to resolve "whether the defendants' acts constituted a single conspiracy to commit two burglaries or whether the acts constituted two separate conspiracies ... ...
- Landrum v. State