Patton v. State, 29968

Decision Date25 May 1961
Docket NumberNo. 29968,29968
Citation175 N.E.2d 11,241 Ind. 645
PartiesRichard PATTON, Robert E. Nickelson, Appellants, v. STATE of Indiana, Donald D. Fuqua, Clifton Nathaniel Phillips, Ann Theresa Marie Hardy, Appellees.
CourtIndiana Supreme Court

John M. Heeter, C. Richard Fulmer, Indianapolis, for appellants.

Edwin K. Steers, Atty. Gen., Patrick D. Sullivan, Deputy Atty. Gen., for appellees.

LANDIS, Chief Justice.

Appellants were charged by indictment with conspiracy to commit a felony, to-wit: robbery, and after trial by the court were convicted and fined in the sum of $2,500 and sentenced to the Indiana State Prison for a period of two to fourteen years.

Appellants have assigned error on this appeal that the court erred in overruling their motion for new trial and contend among other things that the finding of the court is not sustained by sufficient evidence.

Appellee (the State) has contended that we cannot consider this question for the reason that all the evidence is not in the record. However, the certification of the judge below is to the effect that the bill of exceptions '* * * contains all the evidence given and offered in said cause, * * *'; and the certificate of the clerk appears to be in proper form. We conclude the record is properly before us and that there has been a substantial compliance with procedural requirements for us to pass on the question of the sufficiency of the evidence to sustain the finding of the lower court. See F. W. & H., Trial & App. Practice, § 2293, comment 5, § 2343.

An examination of the evidence favorable to appellee reveals the existence of written confessions of the co-defendants Fuqua and Phillips and oral statements by them to a police officer, all of which were made after their arrest, and outside the presence of the appellants herein. The only additional evidence was that the State's witness Moss testified appellant Nickelson told him a friend of his (Nickelson's) '* * * needed one or two boys to do some work'; that thereafter Moss contacted codefendants (appellees) Phillips and Fuqua and told them there was a job to do for a friend of his.

The sole evidence concerning the nature of the job is that about 4:30 p. m. on September 18, 1958, appellant Nickelson went to the home of witness Moss and said he wanted to talk to the fellows Moss had gotten for him. Moss and appellant Nickelson then went to look for the codefendants (appellees) Phillips and Fuqua at the corner of West and North Streets in the city of Indianapolis. On neither being found Moss and Nickelson returned to Moss's home, where they observed Phillips crossing the street. Phillips was called over to the truck in which Moss and Nickelson were riding. Moss got out of the cab and Phillips got in. Moss then went home and heard no conversation.

Appellant Patton does not appear to have been present at any of the conversations with said codefendants Phillips and Fuqua, or with anybody else concerning the commission of any felony; and, in fact, his name wasn't mentioned in the testimony except for State's exhibits 6 and 7 (the signed confessions of Phillips and Fuqua), and the oral statements made by Phillips and Fuqua to policeman Dabner in the absence of Patton, subsequent to Phillips' and Fuqua's arrest.

Reference should here be made to the well established rule in this state that evidence of acts or statements of parties to a conspiracy in furtherance of its objects, is admissible against all the parties to the conspiracy though the statements were made or the acts were performed in the absence of the defendants. 5 I.L.E., Conspiracy, § 15, pp. 251, 252; McKee v. State, 1887, 111 Ind. 378, 12 N.E. 510.

However, it is also true that before the acts or declarations of one conspirator are admissible into evidence against a coconspirator, there must be some evidence, either direct or circumstantial of the existence of a conspiracy. Howe v. State, 1917, 186 Ind. 139, 143, 115 N.E. 81, 82; Dye v. State, 1891, 130 Ind. 87, 88, 29 N.E. 771, 772; Kahn v. State, 1914, 183 Ind. 1, 4, 105 N.E. 385, 386.

As this Court said in the case of Dye v. State, supra, 130 Ind. 87, 88, 29 N.E. 771, 772...

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25 cases
  • Brown v. State
    • United States
    • Court of Appeals of Indiana
    • 29 Abril 1980
    ...testimony concerning Reed's declarations about what Brown had told him is grounded in the following language in Patton v. State, (1961) 241 Ind. 645, 648, 175 N.E.2d 11, 12: "(E)vidence of acts or statements of parties to a conspiracy in furtherance of its objects, is admissible against all......
  • Com. v. White
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 30 Julio 1976
    ...714 (1960). See also Wong Sun v. United States, 371 U.S. 471, 488, 490--491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Patton v. Indiana, 241 Ind. 645, 648, 175 N.E.2d 11 (1961); Commonwealth v. Ellsworth, 409 Pa.St. 505, 510--512, 187 A.2d 640 The Commonwealth suggests that there was a chance Gi......
  • Gubitz v. State, 3--375A38
    • United States
    • Court of Appeals of Indiana
    • 1 Marzo 1977
    ...... The principles appellants urge us to apply were enunciated in Patton, Nickelson v. State (1961), 241 Ind. 645, at 648--49, 175 N.E.2d 11, at 12--13, as follows: . 'Reference should here be made to the well established ......
  • Simpson v. State, 41A01-9212-CR-404
    • United States
    • Court of Appeals of Indiana
    • 20 Enero 1994
    ...conspirator's involvement in a conspiracy cannot be proven solely by the declarations of a co-conspirator or agent, Patton v. State (1960), 241 Ind. 645, 175 N.E.2d 11; see also Sims v. State (1977), 265 Ind. 647, 358 N.E.2d 746, 747, the State must lay an evidentiary foundation showing the......
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