Johnson v. State, 26320.
| Decision Date | 14 March 1935 |
| Docket Number | No. 26320.,26320. |
| Citation | 194 N.E. 619,208 Ind. 89 |
| Parties | JOHNSON v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
John F. Johnson was convicted of conspiracy to commit a felony, and he appeals.
Reversed.
Appeal from Cirminal Court, Marion County; Thomas E. Garvin, Judge pro tem.
Robert Lee Brokenburr and R. L. Bailey, both of Indianapolis, for appellant.
Philip Lutz, Jr., Atty. Gen., and Caleb J. Lindsey, Asst. Atty. Gen., for the State.
The appellant, John F. Johnson, Ernest Martin, and William Singleton were indicted for a conspiracy to commit a felony. Johnson and Martin were convicted, and Singleton was acquitted. Johnson was sentenced to the state prison, and Martin was given a suspended sentence.
The assignment of error is that the court erred in overruling appellant's motion for a new trial. The motion for a new trial assigns four reasons, which are as follows: (1) The decision of the court is contrary to law; (2) the decision is not sustained by sufficient evidence; (3 and 4) the third and fourth reasons relate to objections sustained by the court to the admission of certain evidence.
The indictment was as follows:
‘The Grand Jurors for the County of Marion and State of Indiana, upon their oaths, present that John F. Johnson, Ernest R. Martin, and William Singleton, on or about the 1st. day of April A. D. 1932, at and in the County of Marion and State aforesaid, 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 unlawfully, feloniously, forcibly, by violence and putting Alice Ferguson and Marcia Murphy in fear, rob, take and steal from the person and possession of the said Alice Ferguson and Marcia Murphy, money, the value of which is to the Grand Jurors unknown, which money the said Alice Ferguson and Marcia Murphy then and there unlawfully held in their possession and was then and there the property of the State of Indiana, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.’
It appears from the evidence that the appellant was an employee in the license branch of the secretary of state's office in the state house in the months of January and February,1932, and had been for some time; that Miss Alice Ferguson and Mrs. Marcia Murphy were also employed in the same office acting as cashiers in the auto license department; that a large amount of money accumulated in said office, and especially on Monday, for the reason that the money received on Saturday was not banked until Monday; that as much as $30,000 would be in the office on Monday morning. The evidence further shows that the appellant would be in and out of the office where Miss Ferguson and Mrs. Murphy were, but not in the cage with them where the money was; that the money was visible and easily seen by any one in the office; that the appellant at various times took application for licenses to the cashier's office and transacted other business relating to his duties there. The evidence further shows that the auto license department is in the southeast part of the basement of the state house, and that the state treasurer's office is on the second floor and in the southwest part thereof.
The theory of the state is that there was a conspiracy by the appellant and Singleton and Martin to rob Miss Ferguson and Mrs. Murphy who had charge of the money in the auto license department, and it is so alleged in the indictment.
The alleged coconspirator, Singleton, who was acquitted, testified that on or about February 10, 1932, he went to appellant's office, at the request of the appellant, and that the appellant asked him, ‘How would you like to get in on some easy money?’ And in response to the question by Singleton, ‘What do you mean?’ the appellant said, Singleton said, ‘I can't do that.’ Singleton further testified that he saw the appellant again on February 11, 1932, with the other alleged coconspirator, and the three went to appellant's home and he again talked to Singleton and Martin about holding up the state house; that the appellant had a map drawn showing how to get in and out of the state house; that he saw appellant again on Sunday night, and that he again went over the plans and told him to meet Martin at a certain place on Monday morning February 15th, ‘that it will have to be done between 8 and 9 o'clock’; that he told Singleton if he didn't have a gun he would get one for him. Singleton further testified that he never at any time agreed or consented to the propositions submitted by appellant, and that Martin said nothing. It further appears that Singleton did not go to the state house on Monday, and neither did he meet Martin.
It further appears from the state's evidence that the appellant, on or about February 10th, was at the room of Ernest Martin, codefendant, and that Leon Taylor, Robert Martin, and Ernest Martin were present; that appellant asked them if they would like to make some easy money; that he told them about the state house hold-up and drew some plans; that Taylor and Robert Martin said they did not want to have anything to do with it, and that Ernest Martin didn't say anything. Robert Martin's evidence corroborated to a large extent the evidence just set out.
Cecil Vorhies, a witness for the state, testified that on the night of January 30th, at the residence of Ernest Martin, he met the appellant; that Dallas Bradford and Ernest Martin were also there; that Martin told them that a man would be there to submit a proposition; that the appellant later came, and that he told them of the proposed state house robbery; that the appellant had a drawing showing how to get into the state house; that he directed us how to get in the treasurer's office. The witness further testified that none of them agreed to hold up the state house, and that Martin did not say anything, but later modified this by saying Martin said that ‘we wasn't to be yellow about this matter, that the pistols would be furnished by Johnson.’
Bradford, a witness for the state, testified, in substance, the same as Vorhies.
Ernest Martin, alleged coconspirator, testified in behalf of the state, and stated that he knew the appellant and had worked for him, doing various errands, such as driving his car, and in driving appellant's sister-in-law to church. He further testified that on about January 25th appellant asked him ‘if he wanted...
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