Robertson v. State, No. 28830

Docket NºNo. 28830
Citation231 Ind. 368, 108 N.E.2d 711
Case DateNovember 26, 1952
CourtSupreme Court of Indiana

Page 711

108 N.E.2d 711
231 Ind. 368
ROBERTSON

v.
STATE.
No. 28830.
Supreme Court of Indiana.
Nov. 26, 1952.

[231 Ind. 369]

Page 712

Mellen & Mellen, Bedford, for appellant.

J. Emmett McManamon, Atty. Gen. of Indiana, William T. McClain, John Ready O'Connor, Deputy Attys, Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit under the Acts of 1905, ch. 169, § 641, p. 584, § 10-1101 Burns' 1942 Replacement, with conspiracy to commit a felony, was tried separately by jury, found guilty as charged, and fined in the sum of $400 and sentenced to the Indiana State Prison for not less than two, nor more than fourteen years.

Although ninety-eight causes for a new trial are specified, we need consider only whether the evidence is sufficient to sustain the verdict of the jury.

The affidavit upon which appellant was tried and convicted, omitting formal parts, is as follows:

'Harold R. Dyer who being duly sworn, upon his oath says that Homer L. Robertson, Harold Arthur, Kelso Bowers, Jr., Larry Thompson, Robert McAuley, and Each of Them late of said County and State, on or about the 16th day of March, 1951 at and in the County aforesaid, did then and there 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 and thereby to feloniously take, steal and carry away one (1) safe of the personal goods and chattels of another, to-wit: Harold R. Dyer, this affiant, and Roy Humphrey, and the contents of said safe, said safe and contents being then and thereof the value of Twelve Hundred Dollars ($1200.00), contrary to the form of the statute in such cases made and provided, and [231 Ind. 370] against the peace and dignity of the State of Indiana.'

Appellant was granted a separate trial and the state elected to try him first. It appears that appellant was tried on the theory that he and Harold Arthur and Kelso Bowers, Jr. were the conspirators, as it was not contended during the trial that the other defendants, Larry Thompson and Robert McAuley, were parties to the conspiracy. We have, therefore, considered the questions here presented in light of that fact.

This court, in Coughlin v. State, 1950, 228 Ind. 393, 395, 92 N.E.2d 718, 719, laid down the essentials necessary to constitute a conspiracy under § 10-1101, supra, as follows:

'In order to be a conspiracy there must be an intelligent and deliberate agreement to commit the offense charged. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to do the acts and commit the offense, though the agreement is not manifest by any formal words. Concurrence of sentiment and co-operative conduct in an unlawful and criminal enterprise are the essential ingredients of criminal conspiracy. There must be an agreement and there must be evidence to prove the agreement directly, or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion. Evidence of mere relationship or association between the parties does not show a conspiracy.'

The existence of the agreement need not be proved directly but may be inferred

Page 713

from other facts proved. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to establish his guilt.

Steffler v. State, 1952, 230 Ind. 557, 104 N.E.2d 729.

[231 Ind. 371] The statute defining conspiracy to commit a felony 1 creates two separate offenses: (1) Uniting or combining with any other person or persons for the purpose of committing a felony; and, (2) knowingly uniting with any other person or persons, body, association or combination of persons whose object is the commission of a felony or felonies.

State v. McKinstry, 1875, 50 Ind. 465; Ewbank's Ind. Criminal Law, 2d ed., § 1651, p. 1196.

It is evident that the affidavit in the case at bar attempts to charge the first of these offenses. To sustain a conviction in this case the state was required to prove that appellant knowingly and unlawfully united with one or more of the other persons named in the affidavit for the purpose of stealing and carrying away the personal goods therein described.

An examination of the evidence most favorable to appellee discloses: That there was ample evidence to establish that the safe and the contents thereof as described in the affidavit was stolen and carried away by some one on the night of March 15, 1951, and that it was found at the side of a country road near Maple Grove Church in Monroe County, Indiana, on the morning of March 16, 1951.

Roy Humphreys, one of the owners of the place from which the safe was stolen, testified that he closed the place of business at 12...

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39 practice notes
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...3 If the evidence merely tends to establish a suspicion of guilt, it is not sufficient to sustain a conviction. Robertson v. State, 1952, 231 Ind. 368, 108 N.E.2d 711; Steffler v. State, 1952, 230 Ind. 557, 104 N.E.2d 729; [236 Ind. 60] Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; ......
  • Epps v. State, No. 30102
    • United States
    • Indiana Supreme Court of Indiana
    • September 23, 1963
    ...State (1957), 236 Ind. 509, 141 N.E.2d 444; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Robertson v. State (1952), 231 Ind. 638, 108 N.E.2d 711; and Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729. If the entire record does not show how any prudent man could find the defendan......
  • Peak v. State, No. 29722
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1960
    ...in the record here that appellant was convicted, and that conviction is being affirmed, on guess and suspicion. Robertson v. State, 1952, 231 Ind. 368, 377, 108 N.E.2d 711; Steffler v. State, 1952, 230 Ind. 557, 563, 104 N.E.2d 729; Todd v. State, supra, 1951, 230 Ind. 85, 90, 101 N.E.2d 92......
  • Elmore v. State, No. 2-876
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 1978
    ...to convict them of conspiracy to commit a felony as defined and proscribed by Ind.Ann.Stat. § 35-1-111-1. 7 Robertson v. State (1952), 231 Ind. 368, 370, 108 N.E.2d 711, 712; Diggs v. State (1977), Ind., 364 N.E.2d 1176, Although neither error assigned by appellants is ground for reversal, ......
  • Request a trial to view additional results
39 cases
  • Baker v. State, No. 29297
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1956
    ...3 If the evidence merely tends to establish a suspicion of guilt, it is not sufficient to sustain a conviction. Robertson v. State, 1952, 231 Ind. 368, 108 N.E.2d 711; Steffler v. State, 1952, 230 Ind. 557, 104 N.E.2d 729; [236 Ind. 60] Todd v. State, 1951, 230 Ind. 85, 90, 101 N.E.2d 922; ......
  • Epps v. State, No. 30102
    • United States
    • Indiana Supreme Court of Indiana
    • September 23, 1963
    ...State (1957), 236 Ind. 509, 141 N.E.2d 444; Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Robertson v. State (1952), 231 Ind. 638, 108 N.E.2d 711; and Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729. If the entire record does not show how any prudent man could find the defendan......
  • Peak v. State, No. 29722
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1960
    ...in the record here that appellant was convicted, and that conviction is being affirmed, on guess and suspicion. Robertson v. State, 1952, 231 Ind. 368, 377, 108 N.E.2d 711; Steffler v. State, 1952, 230 Ind. 557, 563, 104 N.E.2d 729; Todd v. State, supra, 1951, 230 Ind. 85, 90, 101 N.E.2d 92......
  • Elmore v. State, No. 2-876
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 1978
    ...to convict them of conspiracy to commit a felony as defined and proscribed by Ind.Ann.Stat. § 35-1-111-1. 7 Robertson v. State (1952), 231 Ind. 368, 370, 108 N.E.2d 711, 712; Diggs v. State (1977), Ind., 364 N.E.2d 1176, Although neither error assigned by appellants is ground for reversal, ......
  • Request a trial to view additional results

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