Hermann v. State
| Decision Date | 21 March 1930 |
| Docket Number | 25,443 |
| Citation | 170 N.E. 786,201 Ind. 601 |
| Parties | Hermann v. State of Indiana |
| Court | Indiana Supreme Court |
1. APPEAL---Instructions---Failure to Point Out Objections---Admission of Correctness.---Appellant's failure to point out objections to a number of instructions given amounts to an admission that they were unobjectionable p. 603.
2. APPEAL---Review of Instructions---Challenged as an Entirety---Availability on Appeal.---A specification in a motion for a new trial that "instructions 1 to 13" were incorrect, thus challenging all of such instructions as an entirety, is not available on appeal unless all of said instructions were erroneous. p. 603.
3. CONSPIRACY---May be Proved by Circumstantial Evidence---Without Proving Formal Agreement Among Conspirators.---A conspiracy may be proved by circumstantial evidence without showing the existence or terms of a formal agreement among the conspirators. p. 606.
4. CRIMINAL LAW---Accomplices are Competent Witnesses---Conviction on Uncorroborated Testimony of Accomplice.---Under the provisions of 2267 Burns 1926 accomplices are competent witnesses when they consent to testify, and a conviction may be had on the uncorroborated testimony of an accomplice. p. 606.
5 CONSPIRACY---Defined.---A "conspiracy" is a corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or as an end. p 606.
6. CONSPIRACY---To Have Unlawful Possession of Still---Indictment or Affidavit---Need Not Allege Conspirators were to Have Joint Possession.---In a prosecution for conspiracy to commit a felony by having unlawful possession of a still for the manufacture of intoxicating liquor, the indictment or affidavit need not allege that the conspirators were to have joint possession of the still. p. 606.
7. CONSPIRACY---How Established---Proof of Express Agreement Unnecessary.---Since a conspiracy may be inferred from all the circumstances accompanying the doing of an act, it is not necessary that an express agreement between the alleged conspirators be established. p. 607.
8. CRIMINAL LAW---Appeal---Review of Sufficiency of Evidence---Appellant Must Point out Insufficiency.---An appellant seeking the reversal of a judgment because the verdict was not sustained by sufficient evidence must point out in his brief, under the heading "Points and Authorities," where the evidence was insufficient to prove some material element of the crime charged. p. 607.
9. CRIMINAL LAW---Appeal---Review of Sufficiency of Evidence---Evidence Considered.---In considering the sufficiency of the evidence on appeal, the only evidence considered is that tending to sustain the verdict, and the court cannot give any credence to the evidence contradicting the evidence supporting the verdict. p. 607.
10. CONSPIRACY---To Have Possession of Still---Evidence Held Sufficient to Sustain Conviction.---In a prosecution for conspiracy to have possession of a still for the manufacture of intoxicating liquor (2882 Burns 1926), the evidence held sufficient to sustain a conviction. p. 607.
From Marion Criminal Court (61,248); James A. Collins, Judge.
Oscar Hermann was convicted of conspiracy to commit a felony, namely, unlawful possession of a still and distilling apparatus for the manufacture of intoxicating liquor, and he appealed.
Affirmed.
Ira M. Holmes, for appellant.
Arthur L. Gilliom, Attorney-General, and Bernard A. Keltner, Deputy Attorney-General, for the State.
Appellant and another were tried on an affidavit charging them with a conspiracy to commit a felony, to wit: unlawful possession of a still and distilling apparatus and use of said still and distilling apparatus for the manufacture of intoxicating liquor in violation of the laws of the State of Indiana. See § 2882 Burns 1926.
Upon arraignment, appellant pleaded not guilty and the cause was submitted to a trial before a jury and he was found guilty. The court rendered judgment on the verdict. A new trial was asked and refused, and from such judgment this appeal was taken.
The only error relied upon in this appeal is the ruling of the court on the motion for a new trial. The motion for a new trial alleges the following reasons: (1) Error of law occurring at the trial, in this, that the court erred in giving of its own motion instructions Nos. 1 to 13, both inclusive; (2) the verdict of the jury is contrary to law; (3) the verdict of the jury is not sustained by sufficient evidence.
In appellant's brief, under Points and Authorities, he says: "The first cause assigned for a new trial is, the court erred in giving on its own motion instructions 1 to 13." Under this specification, the appellant makes the following points: The appellant says that instruction No. 8 is erroneous for the reason that in said instruction after the word "prove" and after the word "evidence" the court has erroneously omitted to use the words "beyond a reasonable doubt"; by failing to insert the words "beyond a reasonable doubt" appellant contends that the jury was improperly instructed, for the reason that said instruction was misleading and that it wrongfully guided the jury in arriving at its verdict; that said instruction instructed said jury to infer certain facts when the well-settled rule of law imposes on the State the burden of establishing beyond a reasonable doubt the guilt of the appellant. Appellant further contends that instructions Nos. 7, 8 and 9 are conflicting and misleading and that they do not correctly state the law; that the court improperly instructed said jury by giving said instructions, Nos. 7, 8 and 9, and that said instructions misled the jury.
It will be observed that appellant insists that three out of 13 instructions given were erroneous, while the correctness of the other instructions given is not questioned. By failing to point out objections to the other instructions, appellant admits that they are correct. An assignment in a motion for a new trial challenging all instructions given by the court as an entirety is not available on appeal unless all instructions so challenged are erroneous. Ginn v. State (1903), 161 Ind. 292, 68 N.E. 294; Conrad v. State (1896), 144 Ind. 290, 43 N.E. 221; State, ex rel., v. Gregory (1892), 132 Ind. 387, 31 N.E. 952; Elliott, Appellate Procedure § 791.
The second and third causes assigned for a new trial are that the verdict of the jury is contrary to law and that the verdict of the jury is not sustained by sufficient evidence. Under this heading, all the points and authorities hereafter cited are addressed to both of said assignments for a new trial and considered together.
The charging part of the affidavit alleges: "That Oscar Hermann and Harold O'Hair on or about the 28th day of September, A. D. 1926, at and in the county of Marion and State of Indiana, did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate, and agree to and with each other, for the object and purpose, and with the unlawful and felonious intent, to then and there unlawfully and feloniously have in their possession and under their control a certain still and distilling apparatus for the manufacture of intoxicating liquor in violation of the laws of the State of Indiana, and did then and there use said still and distilling apparatus in and for the manufacture of intoxicating liquor in violation of the laws of the State of Indiana."
Appellant alleges that the evidence affirmatively shows that the appellant was not present at the place where the alleged still was found at the time the same was discovered by the...
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