Davis v. State, 24878.

• Docket Nº: No. 24878.
• Citation: 161 N.E. 375, 200 Ind. 88
• Case Date: May 18, 1928
• Court: Supreme Court of Indiana

200 Ind. 88
161 N.E. 375

DAVIS
v.
STATE.

No. 24878.

Supreme Court of Indiana.

May 18, 1928.

Appeal from Blackford Circuit Court; Alonzo Bales, Special Judge.

William Davis was convicted of having entered into a conspiracy to carry and deposit a bomb, and he appeals and petitions for writ of error coram nobis. Petition for writ coram nobis granted, judgment reversed, and cause remanded, with directions.

[161 N.E. 376]

Emshwiller & Emshwiller and W. H. Eichhorn, all of Hartford City, for appellant.

Arthur L. Gilliom, Atty. Gen., for the State.

MARTIN, J.

Appellant, with 49 others, was charged by an indictment in two counts with having entered into a conspiracy to commit a felony (section 641, c. 169, Acts 1905; section 2882, Burns' 1926), the felony being that defined in section 4, c. 140, Acts 1889; section 3004, Burns' 1920. The first count charged that they conspired to “unlawfully and feloniously place and deposit a shell and bomb containing dynamite and other nitroexplosive 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, Ind., 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, conceal on and about their person, a cartridge, shell and bomb containing

[161 N.E. 377]

dynamite and other nitroexplosive 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 nitroexplosive compound or [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 years nor more than fourteen years.”

The numbering (1), (2), and (3), we have inserted in the statute for reference in the discussion which follows.

[1] 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 nitroexplosive 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 sufficiently charged that what defendants conspired to do was not to destroy the property lawfully with the owner's consent. Asher v. State (1923) 194 Ind. 553, 142 N. E. 407, 143 N. E. 513;Parker v. State (1925) 196 Ind. 534, 149 N. E. 59. And the charge that the conspiracy was to attempt to “injure” the property of another carried the implication of an attempt to inflict damage in violation of law. City of North Vernon v. Voegler (1885) 103 Ind. 314, 2 N. E. 821;Jordan v. State (1895) 142 Ind. 422, 41 N. E. 817;Trustees, etc., v. New Albany Waterworks (1923) 193 Ind. 368, 140 N. E. 540, 27 A. L. R. 1274. The first count of the indictment was sufficient.

[2] Appellant contends that the second count of the indictment attempts to charge only the felony defined in that portion of the statute above numbered (1), and is fatally defective because it failed to charge an unlawful and illegitimate purpose when it charged “for an unlawful and illegitimate purpose, to wit, to explode and discharge the same against the wall, building, and premises of one Harris Martin,” in that “there is no allegation that the carrying concealed was for the purpose of placing it upon the premises of Harris Martin without his consent.” For the reasons stated above, we believe the second count clearly charged a conspiracy to carry such a bomb concealed “for other than legitimate and lawful purpose,” was not limited to a single clause of the statute, and that the facts stated sufficiently showed that the exploding of a bomb against the wall of Harris Martin's building was not to be with the lawful purpose of using dynamite to wreck his building, for his benefit and by his procurement. The second count was sufficient, and no error was committed in overruling the motion to quash.

Upon appellant's plea of not guilty a jury trial was had, a verdict finding appellant “guilty as charged” was returned, and the court rendered judgment fining appellant $100 and sentencing him to prison for not less than 2 nor more than 14 years.

Errors assigned and relied upon for reversal, in addition to those discussed above with reference to the sufficiency of the indictment, were that the court erred in overruling appellant's motions for a new trial and in arrest of judgment. The motion for a new trial was for the alleged reasons that the verdict is not sustained by sufficient evidence, that counsel representing the state was guilty of misconduct in argument, and that certain evidence was improperly admitted. Appellant, after the submission of the cause and after the briefs were filed, has petitioned for a writ of error coram nobis, showing that certain testimony at the trial was perjured and fraudulent.

The trial of this cause lasted about a month, and the bill of exceptions containing the evidence constitutes almost 2,000 legal size typewritten pages of the record. Briefly stated, the case made out by the state's evidence is as follows: There were two companies with manufacturing plants that included foundries in the city of Montpelier which had the same officers and managers, both employing moulders and coremakers who belonged to an organization called the Moulders' Union. All of the moulders, coremakers, and apprentices employed at one foundry quit work, and two days later those employed at the other foundry were paid off and discharged. Appellant was a moulder who belonged to the union, and had been in charge of a department at the latter foundry up to the time the men working there (including appellant) were discharged. Men were brought in from other cities to take the places of the men who had thus quit or been discharged, and were ledged at the Columbia Hotel, which was owned and operated by Harris Martin. These men were taken each

[161 N.E. 378]

morning from the hotel to the foundries where they worked, and each evening were brought back to the hotel, in trucks operated by their employers. The striking workmen proceeded to picket the hotel, as well as the two plants, and would gather near the door of the hotel each morning when the trucks came for the men lodged there and each evening when the men returned from work, and would make a great noise, calling the men “scabs,” “sons-of-bitches,” and “pigs,” making a noise (“poohey”) like calling hogs, and shouting to the “pigs” to come out and get their “slop,” making other derisive remarks, pushing, shoving, and “milling around,” and “razzing” the “strike breakers.” The day after the moulders and coremakers were discharged from the second plant, Merle Marks said to one of the workmen who had come to take their places, “I warn you that you will have to take the consequences of what you get from working there;” and the next morning a party of the strikers, led by Chester Brenner, accosted the same workman while he was at breakfast and told him to get his clothes and leave on the next car, and he did leave Montpelier for some days. After he returned Chester Brenner and some of the other defendants called this man a vile name, and said they would disfigure him so that his wife would not know him. A week after the men were paid off and dismissed from the second foundry, 35 or 40 “picketers” assembled outside the door of the hotel, and when the men lodged there attempted to get into the truck one of them was struck and knocked down, and the others ran back into the hotel, except one man who got into the truck. Bert McCullick and Chester Brenner and others of the defendants were in the crowd on the sidewalk when this happened. There was no evidence that appellant was present at any time when there was fighting between the pickets and the strike breakers. The city marshal then drew lines on the pavement at some distance from the hotel door, which the picketers were not permitted to cross when the trucks were loading and unloading. Some of the defendants served as pickets about the hotel every morning when the men went to work and every afternoon when they came back, and in the evenings. They served as pickets in squads, each of which was under a leader; appellant was the leader of one squad and Bert McCullick of another, while Chester Brenner took an active part in the picketing; and Bert Reeves had charge of the picketing the night of the explosion. Bert McCullick was president of the local union, which held meetings each day. The members of the union received their assignments to picket duty at the meetings, and the hotel was picketed from 6 until 11 o'clock each evening, and some nights until 12:30 or 1. Merle Marks lived at Indianapolis and was at the head of the union in the state, and...