Kelley v. State

• Citation: 210 Ind. 380,3 N.E.2d 65
• Decision Date: 03 July 1936
• Docket Number: No. 26180.,26180.
• Parties: KELLEY v. STATE.
• Court: Supreme Court of Indiana

210 Ind. 380
3 N.E.2d 65

KELLEY
v.
STATE.

No. 26180.

Supreme Court of Indiana.

July 3, 1936.

Harmon Kelley was convicted of conspiracy to commit a felony, and he appeals.

Reversed, with instructions.

[3 N.E.2d 67]

Appeal from Gibson Circuit Court; Thos. Duncan, Special Judge.
Miller & Causey, of Terre Haute, Frank Ely, of Petersburg, Hovey C. Kirk, of Princeton, Robert W. Armstrong, of Evansville, and Samuel B. Davis, of Terre Haute, for appellant.

James M. Ogden, Atty. Gen., and Harry Taylor, Asst. Atty. Gen., for the State.

TREANOR, Judge.

By an indictment in one count it was charged that the appellant and others did ‘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 then and there unlawfully, feloniously, wilfully and maliciously to prepare, place, arrange, set and distribute, and did then and there unlawfully, and feloniously aid, counsel and procure the preparing, placing, arranging, setting and distributing of a highly explosive substance containing powder and nitro-explosive compound, known as ‘Gelamite’, 2, upon against and about the premises and building of James S. Miller, situate about one quarter of a mile south of Somerville in said County, said building then and there being the dwelling house and residence of the said James S. Miller, with the intent then and there to explode and discharge said explosive substance and unlawfully injure the said property of said James S. Miller, without the consent of said James S. Miller.' Appellant received a separate trial and was convicted. He appeals, assigning as error the overruling of his motion for a new trial, which motion contained 149 separately numbered grounds for a new trial. He presents the assigned error in his brief under 84 separate points by which he undertakes to show that a new trial should have been granted for the following reasons:

(1) Error in the admission of evidence.

(2) Misconduct of counsel for the state of Indiana.

(3) Error in giving or refusing to give certain instructions.

(4) That the verdict is contrary to law.

(5) That the verdict is ‘contrary to the evidence.’

(6) Newly discovered evidence.

The giving of instructions numbered 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 31, and 33 upon the court's own motion is relied upon as error. Those numbered 24, 25, 29, and 30 were correct and were properly given.

The offense charged commonly is designated a conspiracy to commit a felony. The common-law criminal conspiracy, which is defined as ‘a combination of two or more persons, by concerted action, to accomplish some criminal purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means,’ does not exist in Indiana. The offense in Indiana which corresponds to the common-law criminal conspiracy is strictly limited by statute to a uniting or combining of two

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or more persons for the purpose of committing a felony or felonies. ¹ And ‘an indictment under this section (of the statute) must describe the intended felony with the same certainty and particularity as an indictment for committing such felony.’ Ewbank's Indiana Criminal Law, § 1653, and cases cited p. 1200, n. 88. In the instant case, the indictment charged as the intended felony the placing of a powerful explosive ‘upon, against and about the premises and building of James S. Miller * * * with the intent then and there to explode and discharge said explosive substance and unlawfully injure the said property.’ And in order for the state to make its case, it was necessary to prove that the defendant united with another, or others, for the purpose of committing the felony described in the indictment. The defendant could not be convicted lawfully by proof that he had united with one or more persons for the purpose of committing a felony other than the one defined in the indictment no matter how atrocious such other intended felony might be. Under proper circumstances, it may be permissible to prove that the defendant is a party to a conspiracy other than the one charged in the indictment; but the facts constituting any felonious uniting other than the one charged in the indictment cannot be substituted for the facts which must be proved in order to establish the felonious uniting which is charged. Evidence that a defendant is a party to a conspiracy other than the one charged in the indictment is admissible only on the ground that participation in such other conspiracy is some evidence of the existence of an essential element of the offense charged.

The state's case was presented at the trial on the assumption that there was a concerted effort on the part of the officers and members of the United Mine Workers of America in District No. 11 to stop the operation of a certain coal mine as a nonunion cooperative enterprise. This mine was known as Somerville Mine No. 2 and was situated near the town of Somerville in Gibson county, Ind. The appellant was a member of the official board of district No. 11. Mr. Miller, upon whose property the explosive substance was placed, was employed in the mine, and the state proceeded upon the theory, and attempted to prove, that the alleged conspiracy to destroy Miller's house was for the purpose of furthering the general undertaking to stop the operation of Somerville Mine No. 2.

It was legitimate for the state to utilize the foregoing assumptions and to build up its case thereon. It was proper to introduce evidence of the existence of the alleged general conspiracy of the appellant and other members of the United Mine Workers of America to force Somerville Mine No. 2 to cease operations as a nonunion mine for the purpose of showing a motive for appellant's uniting with others to commit the intended felony as charged in the indictment. But it was essential to the protection of appellant for the jury to clearly understand that proof of appellant's combining or uniting with others to commit an unlawful act, or even a felony other than the one charged in the indictment, would not authorize a conviction. And, as hereinafter will be explained, it was highly important for the jury to understand that the defendant was not being tried on a charge of conspiracy to cause the closing of Somerville Mine No. 2.

We shall first consider the alleged error of the court in giving upon its own motion instructions numbered 19, 20, 21, 23, 27, 28, 31, and 33.

In instruction numbered 19 the trial court called the jury's attention to certain happenings and conversations respecting which conflicting testimony had been given, and which, if they actually took place, intended to show an agreement or undertaking between appellant and others to ‘blow up,’ or otherwise destroy Somerville Mine No. 2. The instruction concluded as follows: ‘* * * It is your duty to consider the evidence touching what, if anything, was said by any of the conspirators, if you find there was a conspiracy, touching the destruction of said mine, together with all the other facts and circumstances, if any, shown by the evidence on that issue.’

The foregoing instruction is objectionable because it singles out and calls special attention to parts of the evidence. And since it refers to the so-called ‘conspiracy touching the destruction’ of Somerville Mine No. 2 as an ‘issue,’ there is a strong probability that the jury understood that the so-called ‘conspiracy touching the destruction’ of Somerville Mine No. 2 constituted an essential element of the crime charged in the indictment. Yet if the defendant had

[3 N.E.2d 69]

admitted unqualifiedly that he had been a party to a conspiracy to destroy the mine, the fact of his participation in such conspiracy could have been considered by the jury only as evidence bearing on the issue of the defendant's guilt or innocence of the charge of the indictment.

The failure to distinguish between evidence and issue was further emphasized by instruction numbered 20 which contains the following statements:

‘If you find from the evidence in this case, beyond a reasonable doubt, that on or about the sixth day of June, 1931, in Gibson County, Indiana, the defendant, Harmon Kelley, unlawfully, knowingly and feloniously united, conspired, confederated and agreed, to and with Matthew Bolin, William Foster and other persons named in the indictment in this case, and to and with other persons whose names are alleged to be unknown to the grand jurors, for the object and purpose and with the unlawful and felonious intent, then and there...