Robertson v. State, 28830

• Citation: 231 Ind. 368,108 N.E.2d 711
• Decision Date: 26 November 1952
• Docket Number: No. 28830,28830
• Parties: ROBERTSON v. STATE.
• Court: Supreme 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.

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 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 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.

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 o'clock on March 15, 1951, and put $1,201.90 in cash in the safe and locked it; that he had known appellant for ten or twelve years; that he had seen appellant in his place of business 'one afternoon;' that he didn't recall the date, but it was before March 15, 1951; and that he (appellant) 'came in and sat down in a chair for a period of time.'

Harold R. Dyer, co-owner with Humphreys, testified that when he came to their place of business on the morning of March 16, 1951, the glass was broken in the side door and the safe was gone. He further testified that appellant came into their place of business on 'Thursday or Friday the first or second day of March, 1951;' that he entered on the Fourth Street side, slammed the door, 'walked half-way up to the front, sat down in a chair, sat there about ten minutes, and got up and walked out.' He further testified that to his knowledge appellant had never been in the place before, and when he was there on this one occasion he made no purchase but 'watched them play pool, and got up and went out the same door he came in.' He further testified that two of the other defendants, Arthur and Bowers, came into the place of business on Tuesday, March 6th, and played four or five games of pool.

There was sufficient evidence to show that appellant owned a Dodge pickup truck; that at about 10:10 p.m. on March 15 the truck was clean, and that about 8 o'clock on the morning of March 16, 1951 appellant drove his truck into a filling station in Bloomington to have it washed; that he said to the filling station attendant that he was 'in an awful big hurry' and would make it worthwhile if the attendant gave him a quick wash. The evidence further shows that the wheels of the truck at that time were muddy and that appellant was nervous and in a hurry; that he ordered a half pint of whisky while waiting for his car to be washed and told the attendant that he had been up all night drinking. The attendant observed that the bed of the truck contained chips of 'cement and straw, a few stones and looked like mud and cinders and everything;' but appellant said he did not want the bed of the truck cleaned.

The evidence was sufficient to establish that the particles taken from the bed of the truck at the time of appellant's arrest on March 23, 1951 came from the insulation on the stolen safe or from one having the same identical type of insulation; that the bed of the truck, when examined by police after appellant's arrest, showed two marks running lengthwise of the bed of the truck approximately seventeen inches apart and...