Hamilton v. State

• Decision Date: 30 January 1933
• Docket Number: No. 25480.,25480.
• Parties: HAMILTON v. STATE.
• Court: Indiana Supreme Court

205 Ind. 26

184 N.E. 170

HAMILTON

v.STATE.

No. 25480.

Supreme Court of Indiana.

Jan. 30, 1933.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Fred Hamilton was convicted of burglary in the second degree, and he appeals.

Judgment affirmed.

McMahon & Conroy, of Hammond, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

TREANOR, C. J.

Appellant was convicted of the offense of burglary in the second degree. The alleged errors relied upon for reversal consist of the court's action in excluding certain offered testimony of appellant as a witness in his own behalf on direct and redirect examination, and in refusing to give appellant's tendered instruction No. 1.

Appellant contends that the offered testimony was a “material and culminating part of the testimony in support of appellant's theory” that he was forced to be present at the time of the alleged burglary as a part of a general design and scheme of a Mrs. Graves to carry out threats that she would “ruin his reputation and close the doors of society against him from Maine to California.” Appellant testified that about two weeks after the burglary he had a talk with a Mrs. Graves in which something was said about the burglary, and he offered to testify that at the time she made the following statement: “Well, Fleedy, I got you; you're ruined. I'm the one that gave Ryan the $250.00 and he got the information and got the gang that took you to this bakery where the burglary was committed. If you get out of it, I am going to have you arrested here in Chicago for operation of a confidence game on me and I'll get you anyhow.”

This evidence would be clearly inadmissible unless it could be said to come within one of the exceptions to the hearsay rule. Appellant contends that the evidence was admissible as the declaration of a coconspirator during the existence of a conspiracy. His defense was that he did not willingly engage in the commission of the offense, but that by means of duress and threats his participation was compelled as one of the objects of a conspiracy between the Mrs. Graves whose statement, made about two weeks after the crime, was offered in evidence and excluded, and three men who were present at the scene of the crime, and forced appellant to participate therein.

Appellant was entitled to present competent evidence of duress and compulsion as a defense to the charge for which he was on trial, and if a conspiracy existed to exercise duress and compulsion upon appellant to enforce his participation in the burglary, the acts and declarations of the parties to such conspiracy, during its pendency and in furtherance of its objects, would be admissible. Eacock v. State (1907) 169 Ind. 488, 82 N. E. 1039. The statement of Mrs. Graves, as the declaration of a coconspirator, would be admissible if the trial court believed that prima facie proof had theretofore been made of the existence of a conspiracy between Mrs. Graves and the three men to compel appellant's participation in the burglary, but would not be admissible to prove the existence of a conspiracy in the absence of such prima facie proof.

“*** 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.” Dye v. State (1891) 130 Ind. 87, 29 N. E. 771, 772.

Appellant had testified that he had been forced and compelled to be present at the scene of the burglary by three men who participated in the offense, and he contends that at the time the question was asked calling for the statement of Mrs. Graves it had been shown in evidence that a conspiracy existed, and “that appellant was entitled to have the jury hear all the acts and declarations of the conspirators, in order to determine whether or not said conspiracy did, in fact, exist, and as evidence in support of appellant's defense of duress and compulsion.” Appellant testified concerning the acts and declarations of the three men who, he alleged, compelled him to participate in the burglary, and if such testimony constituted “proof sufficient in the opinion of the trial judge to establish prima facie the fact of conspiracy” between the three men and Mrs. Graves, then the offered declaration of Mrs. Graves as a coconspirator should have been admitted, providing the conspiracy was still pending at the time the declaration was made.

“*** Nothing said or done by one of the conspirators in the absence of the others, after the common design has been fully consummated, can be used as evidence against the others, or affect them in any way.” Card v. State (1886) 109 Ind. 415, 9 N. E. 591, 593.

“Statements or admissions of coconspirators subsequent to the commission of an offense at a time when the conspiracy is ended or the offense committed for which the conspiracy was formed are not admissible against the defendant on trial.” Kahn v. State (1914) 182 Ind. 1, 5, 105 N. E. 385, 387.

But whether such testimony was sufficient to establish prima facie the fact of conspiracy, and whether, if established, it was still in existence at the time Mrs. Graves made the declaration sought to be introduced, was a question peculiarly for the consideration and decision of the trial court. Card v. State, supra. The question as to whether sufficient compulsion and coercion had been exercised upon appellant, by threats of present and immediate violence made at the time he participated in the burglary, to excuse him was for the...