State v. Carlson

• Decision Date: 09 January 1962
• Docket Number: No. 9916,9916
• Citation: 112 N.W.2d 891,79 S.D. 411
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Fritz CARLSON, Garry Grohs, Larry Clark and Jim Barnes, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 891

112 N.W.2d 891

79 S.D. 411

STATE of South Dakota, Plaintiff and Respondent, v. Fritz CARLSON, Garry Grohs, Larry Clark and Jim Barnes Defendants and Appellants.

No. 9916.

Supreme Court of South Dakota.

Jan. 9, 1962.

J. W. Kaye, Miller, Kaye & Hanson, Mitchell, for defendants and appellants.

A. C. Miller, Atty. Gen., Robert D. Hofer, Asst. Atty. Gen., Pierre, A. H. Shuster, Davison County State's Atty., Mitchell, for plaintiff and respondent.

SMITH, Judge.

The defendants were convicted of conspiracy as defined by SDC 1960 Supp. 13.0306. The first three of the defendants, as they are named above, have appealed. By an adequate record and appropriate assignment they question the sufficiency of the evidence to support an inference that they conspired to commit an offense against the state of South Dakota as charged in the information.

In so far as it is pertinent SDC 1960 Supp. 13.0306 reads as follows:

'If two or more persons conspire * * * to commit any offense against the state of South Dakota * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned in the State Penitentiary for not more than five years, or both.'

The count of the information upon which their conviction rests charges that they

'did wilfully, wrongfully and feloniously conspire to commit an offense against the state of South Dakota, namely: grossly disturbing the public peace, in that they did conspire to threaten, to intimidate, to use abusive language against, and to cause fear to the persons of Robert Sinclair, Edward Beers, Joan McKittrick and Bonnie Connor, and that they did at Mitchell, South Dakota, on the 10th day of January, 1960, do acts to effect the object of such conspiracy; To-wit: did strike the person of Robert E. Sinclair'.

To grossly disturb the public peace is made a misdemeanor by SDC 13.1401.

It is settled that an offense which is the object of a conspiracy, and the conspiracy to commit that offense are distinct and separate crimes. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455 and Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435. A real agreement between two or more persons, either express or tacit, to commit the crime which is the alleged object of their conspiracy is of the essence of the crime of conspiracy. SDC 1960 Supp. 13.0306; 15 C.J.S. Conspiracy Sec. 36, p. 1059; and 11 Am.Jur., Conspiracy, Sec. 4, p. 544. Cf. 72 Harvard L.Rev. 925, and 23 Virginia L.Rev. 898. Such an agreement may be, and usually must be, proved by circumstantial evidence. 11 Am.Jur., Conspiracy, Sec. 38, p. 570.

Of course, if the conviction rests on circumstantial evidence alone, such facts and circumstances must be shown as are consistent with each other and with the guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent. State v. Thomas, S. D., 105 N.W.2d 549.

Viewed in the light most favorable to the verdict the record reveals these facts.

During the late afternoon or early evening of January 10, 1960, Robert Sinclair and Edward Beers, then of Sioux Falls, left their wives at the Beers home and went to another residence in that city. There they met Joan McKittrick and Bonnie Connor of Mitchell. An arrangement was made for Sinclair and Beers to transport the young women to Mitchell. Before leaving the city they purchased a six pack of beer, some of which was consumed en route to Mitchell. When they arrived there they parked the Beers automobile about four parking meter spaces north of the entrance to Dick's Tavern on South Main Street. Upon entering the Tavern they took seats in a booth immediately back of a booth occupied by the four defendants and a girl friend of defendant Clark. As they were seated defendants Carlson and Grohs of the one group and Joan McKittrick and Robert Sinclair of the other had their backs to the shoulder-high partition separating the two booths. Both parties were drinking beer. Shortly differences of an unexplained character developed between defendant Carlson and Joan McKittrick, and he made a statement with reference to her morals. Soon there was talk between defendant Carlson and Robert Sinclair and Carlson called Sinclair a foul name and inquired if he 'wanted a piece of him'. Sinclair replied that if Carlson would keep his companions off he would go outside with him. Other talk took place, but its nature and who talked is not clearly revealed. The only person who was identified as having made any particular statement was Carlson. At some time during the half hour the parties were in the Tavern, according to Sinclair, Grohs deliberately bumped him as they passed going to and from the rest room.

When the Sinclair party got up to leave the defendants followed. Carlson was the first out, but by the time the two men and women reached their car, the defendants were not far behind. Beers went around and took his place in the driver's seat and could tell nothing much about the subsequent events. Sinclair opened the rear door next to the curb and was about to enter. The two women were evidently not inexperienced in such situations. They armed themselves with beer bottles from the car, broke the bottles on the curb, and stood guard. McKittrick said, 'I'd tear him all to pieces'. As Carlson approached he removed his jacket, called Sinclair a foul name and said 'come on'. Then he reached around...