Davis v. State

• Decision Date: 18 May 1928
• Docket Number: 24,878
• Parties: Davis v. State of Indiana
• Court: Indiana Supreme Court

161 N.E. 375

200 Ind. 88

Davis v. State of Indiana

No. 24,878

Supreme Court of Indiana

May 18, 1928

1. CONSPIRACY---To Place Bomb on Property of Another Without Consent of Owner.---An indictment charging a conspiracy to violate 3004 Burns 1926 by placing a bomb on the premises of another, with intent to injure his property, was sufficient although it did not expressly state that the placing of the bomb was to be without the consent of such party, as the averment that the alleged act was unlawful and felonious sufficiently charged that what defendants conspired to do was not to destroy the property lawfully with the owner's consent, and the charge that the conspiracy was to "injure" the property of another carried the implication of an intent to inflict damage in violation of law. p. 91.

2. CONSPIRACY---To Explode Bomb on Property of Another---Sufficiency of Indictment.---An indictment charging that the defendants conspired to violate 3004 Burns 1926 by carrying concealed, on and about their persons, a "bomb... for an unlawful and illegitimate purpose, to wit, to explode and discharge the same against the wall building and premises of one H. M.," sufficiently showed that the exploding of a bomb against the wall of H. M.'s building was not to be with the lawful purpose of using dynamite to wreck his building, for his benefit and by his procurement. p. 92.

3. MASTER AND SERVANT---"Picketing"---When Unlawful.---The picketing of a hotel in which strike-breakers were housed by their employers during a strike was unlawful where the picketing was accompanied by threats of force menaces and intimidation. p. 99.

4. MASTER AND SERVANT---"Picketing"---Residence of Strike-breakers---Hotel may Become Residence.---There is no authority for the picketing of the residence of a person employed at a factory where a strike is in progress, and where strike-breakers were housed at a hotel by their employers, such hotel was their residence. p. 99.

5. CONSPIRACY---How Established---Circumstantial Evidence.---A conspiracy may be established by circumstantial evidence alone where there is a concurrence of sentiment and co-operative conduct. p. 101.

6. CONSPIRACY---Proof Necessary---Formal Agreement Unnecessary.---In a prosecution for criminal conspiracy, it is not necessary to show a formal agreement between the parties to do the acts charged, but there must be facts proved from which the jury may infer that there was a meeting of the minds of the parties understandingly so as to bring about an intelligent and deliberate agreement to commit the offense. p. 101.

7. CRIMINAL LAW---Weight of Evidence---How Determined.---It is not the province of an appellate tribunal to weigh the evidence in a criminal case; that is for the jury and the trial court. p. 101.

8. CRIMINAL LAW---Writ of Coram Nobis---When Application Made to Supreme Court.---An application for a writ of coram nobis on the ground that certain testimony on which the applicant was convicted was false and perjured may be addressed to the Supreme Court during the pendency of an appeal. p. 105.

9. CRIMINAL LAW---Writ of Coram Nobis---When Should be Granted.---A writ of error coram nobis should be granted where a material witness for the prosecution admits that his testimony was false and perjured and the verdict most probably would not have been rendered except for such perjured testimony, and where there is a strong probability of a miscarriage of justice unless the writ is granted. p 106.

10. CRIMINAL LAW---Writ of Coram Nobis---Properly Directed New Trial.---On appeal from a judgment of conviction in a prosecution for conspiracy to place and explode a dynamite bomb in a hotel where strike-breakers were being housed during a strike, and in which the state asserted that the defendants (picketing strikers) were guilty, a writ of coram nobis was properly ordered directing the trial court to grant a new trial where the main witness on the trial has admitted that his testimony as to the defendant's identity as a person seen shortly after the explosion was false and that it was given on account of personal feeling against the strikers and because of an arrangement with the prosecuting attorney to give such perjured testimony, and the other evidence was insufficient to sustain a verdict of conviction. p. 107.

11. CRIMINAL LAW---Testimony as to Identity of Party---When Admissible.---In a prosecution of picketing strikers for conspiracy to place a dynamite bomb in a hotel where strike-breakers were being housed during a strike, the admission of testimony of a telephone switchboard operator as to a conversation between the defendant and a codefendant that something was going to happen about 9 o'clock on the night of the explosion was not reversible error where the witness testified that the party on the 'phone gave his name as that of the codefendant, although she did not then know the codefendant's voice, but afterward got to know him and heard him talk. p. 107.

12. CRIMINAL LAW---Defendant's Failure to Testify---Prosecutor's Statement as to Number Testifying.---In a prosecution for conspiracy to commit a felony by placing a dynamite bomb in a hotel where strikebreakers were being housed during a strike, a statement of a special prosecutor that "there were 12 of the codefendants on trial who testified in this case, and only twelve of these codefendants" was not so prejudicial to the defendant who did not testify, even though a violation of subd. 4 of 2267 Burns 1926, as to require a reversal where the statement was expressly withdrawn from the jury by the court and the jury was admonished to disregard it. p. 110.

13. CRIMINAL LAW---Argument---Prosecutor's Statement held Improper.---A statement of counsel for the state in the argument that if the court believed that a mistake had been made it would grant a new trial, and, if the trial court did not, that defendant had the right to appeal to the Supreme Court, which could reverse the case if it believed an error had been made, and that the defendant would then have the right to appeal to the Governor for a pardon or reprieve, was improper and prejudicial, as it was calculated to induce the jury to disregard its responsibility. p. 111.

14. MOTIONS---Scope of Motion---Asking for Excessive Relief---Overruling not Error.---There is no available error in overruling a motion asking for relief to which the mover is not entitled, regardless of whatever else may be asked by the motion. p. 111.

From Blackford Circuit Court; Alonzo L. Bales, Special Judge.

William Davis was convicted of conspiracy to place and explode a dynamite bomb, and he appeals and petitions for a writ of coram nobis.

Petition granted, and judgment reversed, with instruction to grant a new trial.

Emshwiller & Emshwiller and Eichhorn, Gordon & Edris, for appellant.

Arthur L. Gilliom, Attorney-General, Edward J. Lennon, Jr., and George J. Muller, Deputies Attorneys-General and U. S. Lesh, for the State.

OPINION

Martin, J.--

Appellant, with forty-nine others, was charged by an indictment in two counts with having entered into a conspiracy to commit a felony, § 641, ch. 169, Acts 1905, § 2882 Burns 1926, the felony being that defined in Acts 1889, ch. 140, § 4, § 3004 Burns 1926. The first count charged that they conspired to "unlawfully and feloniously place and deposit a shell and bomb containing dynamite and other nitro explosive compound upon, against and about the premises and building of Harris Martin, situated in and being the East end of the Columbia Hotel in Montpelier, Indiana, with the intent then and there to explode and discharge the same and injure the property of the said Harris Martin, without the consent of said Harris Martin, contrary to the form of the statute," etc, and the second count charged that they conspired to, "unlawfully and feloniously carry, concealed on and about their person, a cartridge, shell and bomb containing dynamite and other nitro explosive compound . . . for an unlawful and illegitimate purpose, to-wit, to explode and discharge the same against the wall, building and premises of one Harris Martin. . . ."

Section 3004 Burns 1926 is as follows: "Whoever (1) carries concealed on or about his person any cartridge, shell or bomb containing dynamite or other nitro-explosive compound for any other than legitimate and lawful use or (2) uses or attempts to use the same in any manner to the injury of persons or property, or (3) shall place or deposit the same upon or about the premises of another without the consent of such person, shall upon conviction thereof be imprisoned in the penitentiary not less than two nor more than fourteen years." The numbering (1), (2) and (3) we have inserted in the statute for reference in the discussion which follows.

Appellant to support his contention that the court erred in overruling his motion to quash the first count of the indictment, contends that this count attempts to allege only the felony defined in that portion of the statute above numbered (3) and is fatally defective because it "does not charge a placing without consent, but charges a placing with the intent to explode the same and injure the property without the consent of the owner." The gist of what is charged by this count is feloniously conspiring to use or attempting to use a bomb, of the kind described, to injure the property of Harris Martin and it is not limited to a single clause of the statute. Appellant suggests that an attempt to use dynamite or other nitro-explosive to destroy property at the request of the owner, or otherwise with his consent, might constitute a legitimate and lawful use of the explosive not within the language of the statute. But the averment that the alleged act was unlawful and felonious...