Delaney v. State

• Decision Date: 18 June 1932
• Docket Number: 3.
• Citation: 51 S.W.2d 485,164 Tenn. 432
• Parties: DELANEY v. STATE.
• Court: Tennessee Supreme Court

51 S.W.2d 485

164 Tenn. 432

DELANEY v. STATE.

No. 3.

Supreme Court of Tennessee.

June 18, 1932

Error to Circuit Court, Madison County; W. H. Denison, Judge.

Haywood Delaney was convicted of conspiring with another to take human life, and he brings error.

Reversed and remanded.

Ralph Davis, of Memphis, and John F. Hall, of Jackson, for plaintiff in error.

The Assistant Attorney General, for the State.

SWIGGART J.

The plaintiff in error, Haywood Delaney, has appealed from a judgment rendered by the circuit court of Madison county having criminal jurisdiction, upon an indictment which charged that he and one James Donovan did, on a certain day in November, 1931, "unlawfully and feloniously enter into and form a conspiracy" to commit the offense of murder in the first degree by taking the life of Clyde Little.

The indictment charges the offense defined by Acts 1897, chapter 52, § 1, brought into the Code of 1932 as section 11068. By that statute it is made a felony "for two or more persons to enter into or form any conspiracy or combination *** to take human life," etc.

The language of this statute follows the common-law definition of a conspiracy. "Criminal conspiracy consists in 'an unlawful combination of two or more persons to do that which is contrary to law,"' etc. Russel, Law of Crimes (7th Eng. Ed.) page 146.

On the trial of the case the state announced that it would proceed only against Delaney, making no announcement of its future course as against Donovan. Donovan was used as a witness for the State, and testified that he was approached by Delaney to agree, for a consideration, to take the life of Clyde Little against whom Delaney represented himself as having a grudge or grievance on account of several matters. Donovan testified that he assented to this proposition, and proceeded to enter into Delaney's plan for the consummation of the murder. But Donovan testified that such a crime was foreign to his nature and disposition, and that he at no time intended to commit the murder or to harm Little. The substance of his testimony was that his assent to Delaney's proposition was wholly feigned. He voluntarily disclosed the matter to peace officers, stating to them that he thought they should look into the matter, and in that way Donovan himself brought about the arrest and prosecution of Delaney.

Donovan having been offered to the court as a witness for the state no effort was made to impeach or discredit his own disclaimer of criminal intent, and it is stated as a fact on the brief of the state in this court that Donovan entered into the agreement with Delaney "without any idea whatever of carrying out such plan but, on the contrary, at no time intended to consummate the conspiracy but entered into it with plaintiff in error for the purpose of informing the officers of the existence of such conspiracy."

It is contended for the plaintiff in error that the testimony of Donovan, the truth of which is thus admitted by the state, establishes no conspiracy, but shows that no agreement or combination to take the life of Little was entered into or formed.

We have examined many authorities, without finding one which, on principle or by analogy, can be cited as sustaining this conviction. The state cites none.

The essence of the offense defined by the statute is a combination of two or more persons, and it would be a contradiction of the very terms of the statutory definition to hold that one person may alone commit the offense. The guilty participation of more than one is obviously necessary. "The term 'conspiracy,' and likewise the terms 'combination' and 'confederacy' imply the necessity for at least as many as two persons to constitute the offense. This implication is in no sense misleading, as the authorities concur that conspiracy is a joint offense and cannot be committed by one alone." 6 Am. & Eng. Ency. of Law (2d Ed.) 846.

The case of State v. Tom, 13 N. C. (2 Dev.) 569, is cited as authority for the text quoted, and is also cited in many other texts dealing with the law of criminal conspiracy. The opinion refers to conspiracy as a crime requiring the guilty co-operation of two at least to constitute it, in which there is a mutual dependence of the guilt of each upon that of the other. We quote further from this opinion: "Now conspirators may be said to be co-principals. The guilt of both must concur, to constitute that of either; and it must consist of a joint act, and it makes one crime in both."

The indictment in the case cited charged that the defendant, Tom, and one other, had conspired together to do an unlawful act. The coconspirator was tried separately and acquitted. On the trial of Tom, the record of the acquittal of his coconspirator was offered, and it was ruled that there could be no conviction.

The court said: "And if it appear in the record, in any manner, that two did not participate in the unlawful intent, all are discharged; because neither is guilty of that offence. The only departure from this has been, in passing sentence on one, before the other was convicted. But one has never been convicted, after all the others charged were acquitted; and we think cannot be."

In State v. Jackson, 7 S. C. 283, 24 Am. Rep. 476, the court said: "The term 'conspiracy,' according to the books, implies a combination between two or more to do either an unlawful act or to accomplish by unlawful means a legal end. The concurring will of at least two persons is as necessary to the offense as that of three to the constitution...