Workman v. State
| Decision Date | 29 June 1939 |
| Docket Number | 27206. |
| Citation | 21 N.E.2d 712,216 Ind. 68 |
| Parties | WORKMAN v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Dubois Circuit Court; Union N. Youngblood, Judge.
Louis A. Savage and William E. Cox, both of Jasper, Lutz & Johnson, of Indianapolis, and Fabe Gwin, of Shoals, for appellant.
Omer S. Jackson, Atty. Gen., and Hubert E. Dirks, Depty. Atty Gen., for the State.
The appellant and two others were charged with inflicting physical injury during an attempted robbery while armed. The appellant appeals from the judgment of conviction, assigning error upon the overruling of his motion for a new trial.
The first cause for a new trial presented is that the verdict is not sustained by sufficient evidence. Section 9-102, Burns' Ind.St.1933, section 2243, Baldwin's Ind.St.1934, provides that: 'Every person who shall aid or abet in the commission of a felony, or who shall counsel encourage, hire, command or otherwise procure a felony to be committed may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction, he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.' There is evidence that the two defendants charged with the appellant were principals. Souerdike, one of the principals, testified that the appellant told him that Charles Basch, the person upon whom the offense was committed, had money and bonds in a safe in his house, and suggested and advised that Souerdike procure assistance and rob him and procure the money and bonds, the bonds to be turned over to appellant; that two previous attempts at robbery were made, and that he talked with the appellant after these attempts; and that appellant suggested that he treat Basch as he had another person whom he had robbed and shot. These conversations took place a year or more before the consummation of the crime charged. In determining the sufficiency of the evidence upon appeal, only the evidence most favorable to the state will be considered.
The appellant contends that in order to convict a person as an accessory before the fact it is necessary to show that he has not abandoned the enterprise. He relies upon Walls v. State, 1890, 125 Ind. 400, 25 N.E. 457, but that case in nowise supports the contention. He also contends that the commission of the offense is so remote from the counsel and advice to commit it that it cannot be said that there is causal connection between the two. But this was a question for the jury. There is no evidence that any time was fixed in which the offense was to be committed, nor is there evidence that the appellant sought to withdraw his counsel and influence or to dissuade the other defendants from committing the offense. It is only necessary that the appellant counseled and advised the commission of the crime, and that the counsel and advice influenced the perpetration of the crime. We know of no rule of law which fixes a time limit within which the crime must be perpetrated.
The appellant complains of an instruction in which the court sought to quote the statute above set out, but which began: 'Every person who shall aid or abet, encourage, hire, command or otherwise procure a felony to be committed * * *.' The statute was not correctly quoted, but appellant does not point out in what manner he was injured thereby. The same language was used in another instruction complained of. He contends that an aider or abettor is one who was present at the commission of the felony, and that an accessory before the fact is one who, though absent, counsels or commands another to commit the crime. But, if these distinctions be conceded, it is still not demonstrated that the jury was misled by the instruction. The state relied entirely upon the evidence that the appellant counseled and advised the commission of the crime. The appellant tendered an instruction, which was given, in which the jury was told that unless satisfied beyond a reasonable doubt that the defendant Workman 'did aid, abet, counsel, encourage, hire or command or otherwise procure Frank Souerdyke to unlawfully and feloniously and forcibly attempt to rob * * *,' there could be no conviction. The language is substantially the same as that used in the instruction complained of, and the appellant is in no position to complain that he was injured by its use, although it does not appear that his substantial rights were in any wise prejudiced.
The jury was instructed that, although the crime must be proved beyond a reasonable doubt, this does not mean 'that all the incidental or subsidiary facts should be proved beyond a reasonable doubt'; that the evidence is not to be considered in fragmentary parts, but as a whole.
The appellant ingenuously contends that in order to convict a person as an accessory, facts incidental and subsidiary to the...
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