Coughlin v. State, 28425

• Citation: 228 Ind. 393,92 N.E.2d 718
• Decision Date: 08 June 1950
• Docket Number: No. 28425,28425
• Parties: COUGHLIN v. STATE.
• Court: Supreme Court of Indiana

Page 718

92 N.E.2d 718

228 Ind. 393

COUGHLIN v. STATE.

No. 28425.

Supreme Court of Indiana.

June 8, 1950.

Moore & Goad, Gary, Noel M. Cuff, Gary, James P. Gleason, Michigan City, for appellant.

Cleon Foust, Atty. Gen., J. Emmett McManamon, Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

John E. Roszkowski, Pros. Atty., Ben Schwartz, Pros. Atty., William J. Obermiller, Deputy Pros. Atty., Deniel F. Kelly, Dep. Pros. Atty., Crown Point, amici curiae.

GILKISON, Judge.

Appellant, his wife and two others, were charged by affidavit in two counts, in the trial court. By Count One it is charged that they knowingly and feloniously united, combined, conspired, confederated and agreed 'to then and there and theretofore receive and collect * * * ($15,000) as motor vehicle fuel license taxes' and failing to pay said sum or any part thereof to 'the said Administrator.'

In the second count they were charged with receiving and collecting $15,000 as motor vehicle fuel license taxes, the property of the state of Indiana, and failing to pay the same or any part thereof to the administrator.

A separate trial was granted the two codefendants. Appellant and his wife were tried together by jury, on their plea of not guilty. By its verdict the jury found both defendants not guilty on Count Two of the affidavit. It was unable to agree as to the guilt or innocence of appellant's wife on the first count. It found appellant guilty on the first count, fixed his fine at $5000.00 and that he be imprisoned in the state prison for a period of 2 to 14 years.

From a judgment on this verdict the appeal is taken.

By his motion for new trial, assignment of error and brief, appellant raises the single question, that the verdict of the jury is contrary to law, because it is not supported by evidence.

The crime of conspiracy to commit a felony is defined by statute as follows: '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.' § 10-1101, Burns' 1942 Replacement.

In order to be a conspiracy there must be an intelligent and deliberate agreement to commit the offense charged. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to do the acts and commit the offense, though the agreement is not manifest by any formal words. Concurrence of sentiment and cooperative conduct in an unlawful and criminal enterprise are the essential ingredients of criminal conspiracy. There must be an agreement and there must be evidence to prove the agreement directly, or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion. Evidence of mere relationship or association between the parties do not show a conspiracy. Johnson v. State, 1933, 208 Ind. 89, 95, 194 N.E. 619; Kelley v. State, 1936, 210 Ind. 380, 385, 3 N.E.2d 65; Weer v. State, 1941, 219 Ind. 217, 232, 36 N.E.2d 787, 37 N.E.2d 537; Shonfeld v. State, 1942, 219 Ind. 654, 666, 667, 40 N.E.2d 700; Eacock v. State, 1907, 169 Ind. 488, 502, 82 N.E. 1039; § 10-1101, Burns' 1942 Replacement, supra.

Appellant has a...