Johnson v. State

Decision Date18 September 1968
Docket NumberNo. 667S30,667S30
Citation251 Ind. 182,240 N.E.2d 70
PartiesJohn Paul JOHNSON, William Truman Willis, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, Indianapolis, for appellants.

John J. Dillon, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellants were jointly charged with Conspiracy to Commit a Felony, to-wit: Burglary, by affidavit filed in the criminal court of Marion County. Trial was had by jury resulting in a verdict of guilty. Following the filing of the pre-sentence investigation report judgment was pronounced and defendants perfected this appeal.

The affidavit, omitting heading, formal parts, signature and jurat, reads in pertinent part as follows:

'BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY prosecuting Attorney of the Nineteenth Judicial Circuit, personally came CLIFFORD F. ADAMS who, being duly sworn, upon his oath says that JOHN PAUL JOHNSON and WILLIAM WILLIS on or about the 19th day of SEPTEMBER, A.D., 1966, at and in the County of Marion in the 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 of unlawfully, feloniously and burglariously breaking and entering into the building and structure of THE KROGER CO., a corporation, at 1935 SHELBY STREET, City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation with the intent to commit a felony therein, to-wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said THE KROGER CO., a corporation, and to deprive said THE KROGER CO., a corporation, permanently of the use and benefit of said property, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Each of appellants waived arraignment and entered pleas of not guilty to the charge embraced in the affidavit.

Trial began February 27, 1967, a jury was selected, trial court gave preliminary instructions without objection, State made opening statement, defendants each waived opening statement, and cause was continued until February 28, 1967. On this date the State presented its evidence and rested, each defendant thereupon moved for a directed verdict of acquittal, such motion was overruled as to each defendant; whereupon defendant Willis presented his evidence and rested; defendant Johnson rested and the State rested. Thereupon, out of the presence of the jury, each of said defendants moved for a directed verdict of acquittal, such motion was overruled as to each defendant. The court submitted to the parties the court's additional instructions numbered from 19 to 34 inclusive. No objection was made to said instructions by either State or defendants. Defendants tendered instructions Nos. 1, 2 and 3, Nos. 1 and 2 were refused and No. 3 was given as court's instruction No. 23 1/2.

Thereafter the jury was returned, oral argument was had and concluded, the court instructed the jury which retired and thereafter returned its verdict reading in pertinent part as follows:

'We, the Jury, find the defendants JOHN PAUL JOHNSON and WILLIAM WILLIS, guilty of the crime of Conspiracy to Commit a Felony as charged by the affidavit and that they be fined $250.00, and that they be imprisoned not less than two (2) years nor more than fourteen (14) years, and that the age of the defendant JOHN PAUL JOHNSON is _ _ years, and that the age of the defendant WILLIAM WILLIS is _ _ years.'

On March 9, 1967, after having examined the Pre-commitment Investigation reports filed by the Probation Department, the court, pursuant to the verdict of the jury, sentenced each of said defendants to the Indiana State Prison for not less than two (2) nor more than fourteen (14) years and fined each in the sum of $250.00 and costs, also found each defendant to be 31 years of age. Each of said defendants filed notice of appeal and Praecipe for Transcript.

Thereafter, on March 27, 1967, appellants filed their Motion for New Trial, which, omitting heading, formal parts and signature, reads in pertinent part as follows:

'Come now the defendants, WILLIAM WILLIS and JOHN PAUL JOHNSON, personally and by counsel, and move this Honorable Court for a new trial for the following reasons:

1. The verdict of the jury is contrary to law.

2. The verdict of the jury is not sustained by sufficient evidence.

3. Error of law.

WHEREFORE, the defendants, by counsel, respectfully move for a new trial.'

Defendants' Memorandum in Support of their Motion for New Trial reads as follows:

'In this cause the defendants were charged with and convicted of conspiring to commit the felonious act of burglary as established by statute (Burns' 10--1101). This statute reads as follows: (H.I.).

In order to be a conspiracy under this statute the State must prove a deliberate and intelligent agreement to commit the offense charged. (Coughlin v. State, (1950), 228 Ind. 393, 92 N.E.2d 718). The conspiracy may be inferred from conduct of the parties, but evidence establishing a mere relationship or association between the parties is not sufficient. (Johnson v. State (1935), 208 Ind. 89, 194 N.E. 619). Evidence which establishes such a relationship tends to establish a suspicion of guilt, but this is not enough to sustain a conviction. (Mattingly v. State (1951), 237 Ind. 326, 145 N.E.2d 650). Therefore, when an interence or series of inferences are necessary to establish a suspicion of guilt, this will not be sufficient to sustain a conviction of conspiracy. (Hutcheson v. State (1963), 244 Ind. 345, 192 N.E.2d 748).

In this case the prosecution's witnesses established at the very most only a physical activity conducted by three men. Two of these men (the defendants herein) were apprehended and tried for the crime of conspiring.

In its most favorable light the evidence would show that the defendants, along with an unidentified third party were observed at the rear door of a local Kroger store attempting to damage this door by the use of two cross bars. They were so observed by an Indianapolis Police Officer; and when they in turn observed him they fled. Defendant Willis was aprehended within seconds about 10 yards from the door. The evidence would further show that the door did lead into the rear of a retail food store which did in fact contain merchandise.

There was no evidence that the defendants were related or associated in any other manner. The record does not disclose any conversations, understandings, agreements, or any other communications between them. Nor does it show if, in fact, they even knew each other's names on the night of September 18, 1966.

It is well settled that the crime of second degree burglary requires proof of breaking and entering. While defendants admit that the act charged as a conspiracy need not be consummated, they do charge that the absence of said act and the absence of any evidence establishing an intentional and deliberate agreement acts to make the verdict contrary to law and also one which is not sustained by sufficient evidence.

Copeland v. State (1967), --- Ind. ---.

Error of Law, in rejecting and refusal to give Defendants' tendered instructions No. 1 and No. 2 as they were not covered or included in other instructions.'

Appellants' motion for new trial was overruled April 16, 1967.

Appellants' Assignment of Errors is the single specification:

'1. The trial Court below erred in overruling Appellants' Motion for New Trial.'

Defendant's Tendered Instruction No. 1 (refused by the court) reads as follows:

'The law of Indiana relating to criminal conspiracy is such that the parties must have an intelligent and deliberate agreement between them to do the acts and commit the offense charged.'

Defendant's Tendered Instruction No. 2 (refused by the court) reads as follows:

'In this case the defendants have been charged with conspiring to commit the criminal act of burglary. You must find that each defendant had as his common purpose and understanding not the mere breaking of a door, but also the following acts of entering and unlawfully removing property belonging to the Kroger Company.'

The evidence adduced in this cause most favorable to the State may be summarized as follows: That at approximately midnight on September 18, 1966, a noise was heard at the back door of the Kroger Store located at 1935 Shelby in Indianapolis, Indiana, by two employees of the store who were there waiting to go to work. From the nature of the sounds the employees were of the opinion an attempt was being made to break into the store. One of the employees called the police who were directed to the store by radio. One of the officers who responded to the call left his car a little distance from the store and on foot approached the rear thereof where he observed three men at the rear door of the store. The officer came to a halt approximately fifteen yards from the door over which there was a bright light burning. He observed the three men, two standing facing south, pulling on a crowbar, at the same time he saw another person facing north pulling on another crowbar. These parties were then about 2 feet apart. He identified appellant Johnson as one of these men. The witness observed these three persons for about a minute, after which they started running, with the officer in pursuit. Johnson ran west in the alley, the other appellant, Willis, ran south, jumped a railing in the rear of the Super X Drug Store and hid behind a trash can. The third person got away, running towards Calhoun Street. The witness had fired three warning shots after ordering the men to stop. The officer stood in front of the trash can and ordered Willis out, he came out with his hands up. The witness identified appellant Willis sitting in the...

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  • Lane v. State, 971S279
    • United States
    • Supreme Court of Indiana
    • 1 Noviembre 1972
    ...flee, but they were apprehended by the police. The facts presented in this case are almost identical to those found in Johnson v. State (1968), 251 Ind. 182, 240 N.E.2d 70. In Johnson, the two defendants and an unidentified third party were surprised by the police during their attempt to pr......
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