Mattingly v. State, 29480
| Citation | 142 N.E.2d 607,236 Ind. 632 |
| Decision Date | 27 May 1957 |
| Docket Number | No. 29480,29480 |
| Parties | Wilson MATTINGLY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
DeRoo Weber, Mt. Vernon, Carrol F. Dillon, Evansville, for appellant.
Edwin K. Steers, Atty. Gen. of Indiana, Owen S. Boling, Merl M. Wall, Deputy Attys. Gen., for appellee.
The appellant was charged with two other persons in the Posey Circuit Court with a crime of conspiracy to commit a felony. He was tried separately, without a jury, and was found guilty and sentenced for two to fourteen years in the Indiana State Reformatory. His assignment of errors is that the court erred in overruling his motion for a new trial which contained two grounds only, to-wit: (1) The decision of the court is contrary to law; (2) the decision of the court is not sustained by sufficient evidence.
The main contention of the appellant is that the conviction should not be sustained because of the 'evasive, conflicting, ambiguous and uncorroborated' testimony of William Ausley, an alleged co-conspirator who turned State's witness. To this is also added the further contention that the evidence fails 'to show the appellant clearly and conclusively guilty of the charge of conspiracy to commit a felony' because of lack of intent resulting for intoxication.
The evidence most favorable to the state shows that the appellant, his half-brother and one William Ausley, all went to Evansville. On the way back to Mt. Vernon they drank some whiskey. Ausley testified that they talked about breaking into Reed's Barber Shop in Mt. Vernon, and that the appellant told Ausley he knew there was money left in there, and that he asked Ausley, and his half-brother, Lawrence Mattingly, if they wanted to get it. This conversation, however, is denied by the appellant. The testimony is undisputed that Austley and the appellant got out of the car in Mt. Vernon, and went back in the alley at the rear of the barber shop, and were apprehended there by the police as they attempted to flee. When the officers closed in on them and threw on their lights, the appellant ducked and ran under the spotlight, and shouted, 'I will just run through it.' The police inspected the rear of the shop, and found the window had been broken open, the lock had been pried loose, and a screwdriver lying on the ground. They found fresh blood on the window sill, and appellant's thumb was bleeding. These was testimony by officers to the effect that the appellant and Ausley appeared to be intoxicated.
The appellant cites and relies upon Sylvester v. State, 1933, 205 Ind. 628, 187 N.E. 669, wherein the defendant was convicted of vehicle taking. It is true, in that case, Judge Myers severely criticized convictions based upon the testimony of co-conspirators and criminals. In that case, however, the co-conspirator who testified against the defendant, had previously denied the defendant's implication whatever in the crime, and contradicted himself under oath. In the case before us, even excluding the testimony of Ausley, we have a situation where the appellant and Ausley were caught practically red-handed in the act of breaking in the rear of the barber shop. The case of Taylor v. State, 1956, 235 Ind. 126, 131 N.E.2d 297, seems to us to be in point. In that case, on page 299 of 131 N.E.2d the evidence regarding the two persons charged with conspiracy was as follows:
The court further said on page 299 of 131 N.E.2d:
'The facts is this case above recited are sufficient to establish by inference a common purpose and plan to commit a burglary and, therefore, to sustain a conviction of conspiracy to commit burglary. It is not necessary that the evidence show a formal agreement to form a conspiracy, nor that the object of the conspiracy be actually committed. Lynn v. State, supra [207 Ind. 393, 193 N.E. 380]; Chappell v. State, supra [216 Ind. 666, 25 N.E.2d 999]; Hermann v. State, 1930, 201 Ind. 601, 170 N.E. 786; Shonfeld v. State, supra [219 Ind. 654, 40 N.E.2d 700].
'Participation in criminal conspiracy need not be proved by direct evidence but common purpose and plan may be inferred from development and collocation of circumstances.'
The appellant directs our attention to evidence which shows that...
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