Webster v. State, 25947.

• Decision Date: 16 April 1934
• Docket Number: No. 25947.,25947.
• Citation: 206 Ind. 431,190 N.E. 52
• Parties: WEBSTER v. STATE.
• Court: Indiana Supreme Court

206 Ind. 431

190 N.E. 52

WEBSTER

v.STATE.

No. 25947.

Supreme Court of Indiana.

April 16, 1934.

Appeal from Criminal Court, Marion County; Floyd J. Mattice, Special Judge.

Irving Webster was convicted under an indictment charging conspiracy to commit the felony of blackmail, and he appeals.

Judgment affirmed.M. L. Clawson and Verne C. Chapman, both of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Robert L. Bailey, Spec. Asst. Atty. Gen., for the State.

TREANOR, Judge.

Appellant and Newman were charged by an indictment in three counts with conspiracy to commit the felony of blackmail. The first and second counts alleged that the person whom the defendants conspired to blackmail was one Thomas O. Sines; the third count charged that they conspired to blackmail “persons, whose names are to the grand jurors unknown.” The appellant obtained a special judge and in a separate trial, by the court, was found guilty as charged. Appellant's motion for new trial was overruled. The sole error assigned on appeal is the action of the trial court in overruling the motion for new trial. The grounds for new trial were that the finding (1) was not sustained by sufficient evidence and (2) was contrary to law; and (3–18) that the court erred in its rulings admitting, over appellant's objections, certain evidence offered by the state, and rejecting or striking out, upon the state's objection, certain evidence offered or introduced by appellant.

Under the third, sixth, seventh, ninth, thirteenth, and fifteenth causes for new trial appellant urges as reversible error the trial court's action in receiving over appellant's objection certain evidence offered by the state. This evidence dealt with conversations and transactions between the coconspirator, Newman, and persons, other than Sines, from whom, pursuant to an alleged agreement between appellant and Newman, the latter attempted to solicit money for advertising space. The advertisements were to appear in appellant's paper, the Indiana Journal, and in a book, The Progress of Indianapolis, to be published by Newman. Some of the evidence so received merely showed a sale of or attempt to sell space, unaccompanied by any improper conduct and could not have harmed appellant. Other evidence so received tended to establish that such solicitations were accompanied by threats to injure the reputation and business of the persons solicited unless they bought advertising space. Under the fourth, fifth, and ninth causes for new trial appellant predicates error upon the admission of evidence of conversations to which appellant was a party upon the subject of selling advertising space to, and obtaining money from, persons other than Sines during the pendency of the conspiracy charged. Appellant urges that this evidence was inadmissible because the indictment did not charge a conspiracy to blackmail the persons referred to in the conversations.

The indictment charged, in effect, that the purposed felony of blackmail, the subject of the alleged conspiracy, consisted of extorting money from Sines under threats to publish an article in the Indiana Journal accusing Sines of immoral conduct unless he bought advertising space in the Indiana Journal and in The Progress of Indianapolis. The evidence questioned by the above numbered causes for new trial was evidence of conversations and acts in which one or both of the alleged coconspirators participated and tended to establish the performance of overt acts, other than the ones set out in the indictment, and to establish that these overt acts were performed in pursuance of a general scheme, plan, understanding, or system of which the conspiracy charged was a part. Such evidence is admissible, even though it may also tend to establish the commission of offenses other than the one charged. Gears v. State (1932) 203 Ind. 380, 180 N. E. 585;Huffman v. State (Ind. Sup. 1933) 185 N. E. 131. The instant case is distinguished from the case of Hawkins v. State (1916) 185 Ind. 147, 113 N. E. 232, relied upon by appellant, by the court's statements in that case.

The eighth cause for new trial presents no reversible error. The evidence objected to related to conversations and transactions that did not take place in appellant's presence, but related to Newman's conversations and transactions with Sines. It tended to show what was said and done by Newman, a coconspirator, in carrying out the conspiracy charged, and was clearly admissible against appellant.

“‘Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design.’ 1 Greenl. Ev. § 111.” Card v. State (1886) 109 Ind. 415, 418, 9 N. E. 591, 593.

The tenth and fourteenth causes for new trial are based upon objections to questions alleged to be leading and suggestive and calling for the witnesses' conclusions. Appellant could not have been harmed by the court's action in permitting the questions to be asked and answered since previous questions had been asked and answered without objection covering the substance of the answers given to the questions objected to.

The rule against leading questions is for the purpose of preventing the substitution of the language of the attorney for the thought of the witness as to material facts in dispute. Tecumseh, etc., Mining Co. v. Buck (1922) 192 Ind. 122, 134, 135 N. E. 481. The extent to which such questions shall be permitted rests primarily with the trial court in the exercise of a sound legal discretion.

“Cases are never reversed upon the ground that leading questions were permitted, unless it is made very clearly apparent that there was an abuse of...