Gubitz v. State, 3--375A38

Citation172 Ind.App. 343,360 N.E.2d 259
Decision Date01 March 1977
Docket NumberNo. 3--375A38,3--375A38
PartiesDavid GUBITZ and Larry Charles McCraney, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
CourtCourt of Appeals of Indiana

Max Cohen, Gary, for Gubitz.

David J. Hanson, Spangler, Jennings, Spangler & Dougherty, Gary, for McCraney.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.


Defendants-appellants David Gubitz and Larry Charles McCraney were charged in a two-count affidavit with the offenses of conspiracy to commit a felony 1 and theft of property of $100 or more in value. 2 Trial by jury resulted in findings of guilty as charged. The trial court entered judgments on the verdicts and sentenced both Gubitz and McCraney to the custody of the Indiana Department of Correction for a period of not less than two nor more than fourteen years on the conspiracy count and for a period of not less than one nor more than ten years on the theft count, which sentences were to run concurrently. Thereafter, appellants' respective motions to correct errors were overruled and this appeal followed.

The evidence and favorable inferences therefrom disclose that between August 6, 1973 and August 17, 1973, Dwane Alexander and appellant Larry McCraney were engaged in a car theft operation in which they would steal automobiles, strip certain parts therefrom and subsequently sell the parts to auto wrecking companies.

On four or five separate occasions, McCraney and Alexander sold a total of fourteen to sixteen stolen automobile doors at Universal Auto Parts in Hammond, Indiana. The procedure used upon arriving at Universal was that McCraney would enter the store and ask for Gubitz. The doors would then be taken to a garage across the street. Alexander testified that he saw Gubitz purchase doors on four occasions. Gubitz did not ask Alexander and McCraney where they were getting the doors, and on one occasion Gubitz chastised McCraney for bringing in doors with 'numbers and service station stickers' on them.

On August 13th or 14th, Gubitz told McCraney that he wanted a 'special set of doors' from a "73 Ford Broughm (sic) but he didn't want no loud color.'

The next day, McCraney and Alexander filled that order by stealing a brown 1973 Ford Brougham from the Woodmar Country Club in Hammond, Indiana. McCraney drove the automobile to a location in Gary, parked inside a garage, removed the doors from the automobile and took them to Universal Auto Wrecking Company where they were sold.


On appeal appellants raise several issues in common. Although their assertions at times explore varying aspects of the common question or extend the arguments to related areas, the common issues will be combined for purposes of discussion and the differing aspects and extensions of arguments will be drawn into the discussion of the common issue at the appropriate times.

The issues raised in common are that the trial court erred in admitting the testimony of alleged so-conspirator Alexander without any independent evidence of a conspiracy being first introduced and in admitting evidence of crimes other than that charged in the affidavit. Both also contend that the trial court erred in not granting their respective motions to correct errors when newly discovered evidence disclosed that Alexander committed perjury when he testified he had not been granted leniency in exchange for his trial testimony.

Gubitz and McCraney first challenge the sufficiency of the evidence by asserting that the testimony of Dwane Alexander, an alleged co-conspirator, was not properly admissible because independent proof of a conspiracy was not first shown. The principles appellants urge us to apply were enunciated in Patton, Nickelson v. State (1961), 241 Ind. 645, at 648--49, 175 N.E.2d 11, at 12--13, as follows:

'Reference should here be made to the well established rule in this state that evidence of acts or statements of parties to a conspiracy in furtherance of its objects, is admissible against all the parties to the conspiracy though the statements were made or the acts were performed in the absence of the defendants. 5 I.L.E., Conspiracy, § 15, pp. 251, 252; McKee v. The State (1887), 111 Ind. 378, 12 N.E. 510.

'However, it is also true that before the acts or declarations of one conspirator are admissible into evidence against a coconspirator, there must be some evidence, either direct or circumstantial of the existence of a conspiracy. Howe v. State (1917), 186 Ind. 139, 143, 115 N.E. 81, 82; Dye v. The State (1891), 130 Ind. 87, 88, 29 N.E. 771, 772; Kahn v. State (1914), 182 Ind. 1, 4, 105 N.E. 385, 386.

'As this Court said in the case of Dye v. State, supra, (130 Ind. 87, 88, 29 N.E. 771, 772):

'. . . it is a rudimental principle that agency, conspiracy or the like, cannot be proved by the declarations of the alleged agent or conspirator. To make the admissions of an alleged conspirator evidence, there must be some evidence, although it need not be strong, of the existence of the conspiracy. . . .'

'It is further well established that only those acts and declarations which transpired or were made between the beginning and the ending of the conspiracy and in furtherance of its objects may be shown against the asserted coconspirators who did not make the declarations or do the acts in question. 5 I.L.E., Conspiracy, § 15, pp. 251, 252 supra. In this connection it has been held that a confession or admission of the existence of a conspiracy by one coconspirator after he has been apprehended or arrested is not in furtherance of the conspiracy so as to be admissible against his fellow conspirators. Fiswick v. United States, (1946), 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196, 200; See: Baker v. State (1910), 174 Ind. 708, 713, 93 N.E. 14, 17; Walls v. The State, (1890), 125 Ind. 400, 402, 25 N.E. 457.'

Although the aforementioned principle is an accurate statement of the law, its application in the case at bar is misplaced. The principle, insofar as it relates to statements of a co-conspirator, refers to out-of-court statements or declarations. Thus, the principle requiring independent proof of a conspiracy to be first shown is applicable where such out-of-court statements of an alleged co-conspirator are offered into evidence against another conspirator as an exception to the hearsay rule. See, Kessler v. State (1976), Ind.App., 355 N.E.2d 262; Wolfe v. State (1974), Ind.App., 315 N.E.2d 371. See also, State v. Carey (1974), 285 N.C. 497, 206 S.E.2d 213; Annot., 46 A.L.R.3d 1148 (1972). However, the case at bar does not involve the use of such extrajudicial acts or declarations of one conspirator against another. Rather, it involves the use of direct testimony of one co-conspirator against another. The latter testimony is not hearsay.

A co-conspirator is an accomplice and is a competent witness. Wolfe v. State, supra; State v. Carey, supra; 15A C.J.S. Conspiracy § 92c, p. 902. It is well-settled that a defendant may be convicted solely on the uncorroborated testimony of an accomplice. Wolfe v. State, supra; Newman v. State (1975), Ind., 334 N.E.2d 684; Keel v. State (1975), Ind.App., 333 N.E.2d 328 (transfer denied). Accordingly, Alexander was a competent witness and his testimony was properly received into evidence.

McCraney asserts that in Shelton v. State (1972), 259 Ind. 559, 290 N.E.2d 47, our Supreme Court extended the rule requiring independent evidence of a conspiracy to instances where one co-conspirator gives direct testimony for the State against the other co-conspirator. However, an examination of the Shelton decision indicates that the court did not decide whether the principle applied to instances where a co-conspirator gives direct testimony. Rather, the Supreme Court recognized the existence of the rule as enunciated in Patton, Nickelson v. State, supra, and decided it inapplicable on the basis that the State's witness was not, in fact, a co-conspirator.

Gubitz extends the sufficiency of the evidence issue to further contend that there was a failure of proof on the theft charge. However, an examination of the evidence indicates there was sufficient evidence for the jury to find that Gubitz counseled and encouraged the commission of the theft.

Gubitz further contends that under Keiton v. State (1968), 250 Ind. 294, 235 N.E.2d 695, the State was required to introduce the stolen doors as proof of the corpus delicti or show good reason why such could not be done, and that the failure of the State to introduce such evidence required the trial court, on motion of the defendant, to strike from the record all evidence relating thereto. 3

In Pulliam v. State (1976), Ind., 345 N.E.2d 229, 237, our Supreme Court overruled Keiton v. State, supra, to the extent that it held that the failure to introduce into evidence the physical object of a theft would subject testimony relating thereto to a motion to strike. See also, Riley v. State (1976), Ind., 349 N.E.2d 704.

Both Gubitz and McCraney next contend that the trial court erred in admitting evidence of other crimes. One basis for this assertion is that the alleged co-conspirator Alexander should not have been allowed to testify at all until independent evidence of a conspiracy had been shown. Thus, he should not have been permitted to testify as to other crimes which he and McCraney allegedly committed. 4 However, in view of our resolution of the issue concerning the propriety of the alleged co-conspirator's testimony this contention need not be further treated.

Both Gubitz and McCraney rely on Brooks v. State (1973), Ind.App., 296 N.E.2d 894, for the proposition that it is reversible error to admit evidence of other thefts allegedly committed by a defendant. However, the proximity in time and place of the other criminal activity as well as the approach...

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