Kleihege v. State, 25675.

• Decision Date: 16 February 1934
• Docket Number: No. 25675.,25675.
• Citation: 206 Ind. 206,188 N.E. 786
• Parties: KLEIHEGE v. STATE.
• Court: Indiana Supreme Court

206 Ind. 206

188 N.E. 786

KLEIHEGE

v.STATE.

No. 25675.

Supreme Court of Indiana.

Feb. 16, 1934.

Appeal from Criminal Court, Lake County; M. E. Crites, Special Judge.

William Kleihege was convicted of a conspiracy to commit a felony, and he appeals.

Reversed with instructions.

Superseding opinion, 177 N. E. 60.

W. J. Whinery and McAleer, Dorsey, Clark & Travis, all of Hammond, and Louis B. Ewbank, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., Geo. W. Hufsmith, Dep. Atty. Gen., and E. Burke Walker, 2nd Dep. Atty. Gen., for the State.

MYERS, Judge.

Appellant, with five other persons, was, by affidavit, charged with the crime commonly known as a conspiracy to commit a felony. Section 641, c. 169, Acts 1905, pp. 584, 742, section 2882, Burns' 1926. The purposed felony sought to be charged is defined by section 5, c. 44, Acts 1927, p. 122, section 2442.3, Burns' Supp. 1929. Appellant had a separate trial before a jury which resulted in his conviction. Judgment and sentence followed, from which he has appealed to this court, assigning as errors the action of the trial court (1) in overruling his motion in arrest of judgment; (2) in overruling his motion for a new trial; and (3) in overruling his petition to stay judgment and sentence on the ground that he alone had been convicted.

Appellant, to support his motion in arrest of judgment, relies upon insufficient facts in the affidavit to state a public offense. He contends that the single-count affidavit attempts to charge four separate and distinct offenses as the purposed felony, in that it fails to charge that such felony was committed by the same person at the same time and as a part of the same transaction, subjecting the offender to the same punishment. Hence it fails to comply with article 1, § 13, Indiana Constitution, for the reason that the “nature and cause of the accusation is not charged in direct and unmistakable terms.” Citing, Hinshaw v. State, 188 Ind. 147, 122 N. E. 418. That was a conspiracy case and the court had under consideration a motion to quash each count of the indictment. Both counts were held insufficient to withstand a motion to quash for the reason that the facts constituting the purposed felony, which was the object of the conspiracy, were not charged as specifically as the law requires to put the defendant on trial for the felony.

In the instant case no motion to quash was made. The motion in arrest asserts insufficient facts, but appellant attempts to sustain it on the theory that the affidavit is bad for duplicity. A pleading, although bad for duplicity, is not subject to a motion in arrest of judgment after verdict. But if it were, it would be unavailing to appellant in the instant case.

That part of the affidavit in question reads as follows: “And with each other for the object and purpose and with the unlawful and felonious intent to then and there unlawfully, feloniously, wilfully and maliciously prepare, place, arrange, set and distribute and to aid, counsel, and procure the preparing, placing, arranging, setting and distributing of certain combustible material, explosive substance, instrument and liquid in and about a certain theatre building then and there situate, with the unlawful and felonious intent then and there and thereby to set fire to, burn, blow up and destroy said theatre building, and to have the said theatre building set fire to, burned, blown up and destroyed.” This affidavit follows closely the language of the statute, section 2442.3, supra, which defines the purposed felony intended to be charged as follows: “Whoever wilfully and maliciously *** aids, counsels, or procures the preparing, placing, arranging, setting or distributing of any combustible material, explosive substance, instrument, liquid *** in or about any house, building or other structure *** with the intent to set fire to, burn, blow up, or destroy any such property, or have the same set fire to, burned, blown up or destroyed, such property being the property of another, *** shall be guilty of a felony and shall, upon conviction thereof, be imprisoned in the state prison not less than one nor more than three years.” This statute designates particular acts, the doing of any one of which constitutes a felony. They are all punishable alike. They may be pleaded singly or conjunctively in a single count of an indictment or affidavit without offending the rule against duplicity. Farr v. State, 198 Ind. 302, 304, 153 N. E. 476, and cases there cited; Howard v. State, 191 Ind. 232, 131 N. E. 403;Lennard v. State, 191 Ind. 371, 132 N. E. 677.

Appellant, further supporting his motion in arrest, insists that chapter 44 (Burns' Ann. St. Supp. 1929, §§ 2441-2442.5), and especially section 5, Acts 1927, p. 122 (section 2442.3), is unconstitutional and void for the reason that it is in direct violation of article 4, § 19, Constitution of Indiana, which provides, in part, that “every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” He insists that chapter 44, which includes section 5, is limited by its title to an act concerning the crime of arson only, and that the facts in the affidavit are insufficient to charge arson. The act is entitled: “An Act concerning the crime of arson and certain other crimes connected with the destruction or attempted destruction of property by fire or explosion, prescribing penalties therefor, and repealing all laws and parts of laws in conflict therewith.” The substance of section 5 defining the purposed felony charged in the instant case is set out above and is not subject to the limited construction that appellant would have us give it or the seven sections composing the chapter. The title of the act may be subject to criticism, but when carefully read, the conclusion must be that it embraces but one subject, namely, preservation of property against destruction by certain means-fire and explosion-by persons not the owner thereof.

The last above constitutional provision is a mandate on our lawmaking body requiring the title to an act to be sufficiently explicit to apprise the members thereof of the matter embraced in the bill. The details, however, must be sought in the body of the enactment. Moore-Mansfield, etc., Co. v. Indianapolis, etc., R. Co., 179 Ind. 356, 390, 101 N. E. 296, 44 L. R. A. (N. S.) 816, Ann. Cas. 1915D, 917;Western Union Tel. Co. v. Braxtan, 165 Ind. 165, 74 N. E. 985;Crabbs v. State, 193 Ind. 248, 139 N. E. 180;State v. Closser, 179 Ind. 230, 235, 99 N. E. 1057, 1059.

In the case last cited it is said: “It is also the settled rule that the title of an act is to receive a liberal construction, if necessary, to sustain the legislative intent. A critical construction will not be made of the title to hold a statute unconstitutional; but, on the contrary, the language used is in all cases given a liberal interpretation, and the largest scope accorded the words employed that reason will permit, in order to bring within the purview of the title all the provisions of the act.”

The trial court properly overruled the motion in arrest.

Appellant has assigned as causes for a new trial, verdict of the jury not sustained by sufficient evidence, verdict contrary to law, and verdict of the jury did not express the opinion of at least four of the jurors that appellant was guilty beyond a reasonable doubt. Since the judgment must be reversed for other alleged errors in the motion for a new trial, we will not give the three mentioned causes any further attention, as they will not likely arise on a retrial.

The trial court gave to the jury instructions Nos. 4 and 5, which, in our judgment, were harmfully erroneous, in that these instructions impressed upon the jury the common-law definition of the word “conspiracy,” thereby modifying or changing our statutory definition of the crime, in this case charged, to the extent that any concerted action by two or more persons to accomplish any criminal or unlawful purpose, or a purpose not unlawful but accomplished by criminal or unlawful means, would make them guilty regardless of the provisions of our statute making only those guilty who enter into a combination to commit a felony. The rule that all instructions are to be considered together emphasizes the erroneous character of Nos. 4 and 5 considered in connection with No. 2, which merely incorporated the statute defining both the offense and the purposed felony. The statute defining the offense of which appellant was convicted reads as follows:

“Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction. ***”

It will be noticed that the statute defining the instant purposed felony, or the statute defining the offense with which appellant was charged does not use the word “conspiracy.” That word has been attributed by the courts to the statute defining the offense here charged only because it has some of the characteristics of the common-law conspiracy. It is the outstanding word in instructions 4, 5, and 7 given to the jury by the court on its own motion. These instructions together tend to emphasize the importance in this case of the common-law definition of that word. Instruction No. 4 follows:

“A conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means.”

No. 5, so far as it is material to the question here involved, reads as follows:

“In order to establish the existence of a conspiracy it is necessary for the state to prove a combination...