Brewster v. State

Spencer, J.

Appellant was tried and convicted on an indictment which charges that he and three others, at a time and place fixed, “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 to then and there unlawfully and feloniously, willfully and maliciously set fire to and burn a certain store building,” etc.

In prosecuting this appeal, appellant earnestly insists that the circuit court erred in overruling his motion for a new trial for the reason, among others, that *371 the verdict of the jury is wholly unsupported by the evidence. It must be conceded that some of the evidence which was introduced in behalf of appellant tends to raise serious doubt as to the credibility of certain important witnesses for the State, but that issue has been determined by the verdict of the jury and we are now to consider that evidence on Which such verdict must have been based.

1. It appears from the testimony of the witness Heacock, one of the alleged conspirators, that sometime prior to the attempted burning of the building in question, and during a conversation between witness and appellant, the latter expressed some feeling against the occupant of the place and offered Heacock fifty dollars to burn the store, but he refused to do so. The. subject was mentioned on one or two occasions thereafter before witness agreed that he would start the fire if appellant would get one Coleman, another of the alleged conspirators, “to stand good for the money.” Heacock asserted that appellant agreed to do this, and that Coleman afterwards said, to quote the witness, that “what me and that fellow were talking about was all right. He' would see that I got that money when that happened.” Thereupon, and without the knowledge of appellant, witness employed Harrell, the fourth alleged conspirator, to assist him in committing the act. Some features of this testimony are corroborated by that of other witnesses.

2. *372 3. 4.

*371 It must be borne in mind that the indictment is based on §2647 Burns 1914, Acts 1905 p. 584, 742, and charges appellant with conspiracy to commit a felony. The term “criminal conspiracy” is not suscep-' tibie of exact definition but, in general, has been said to be “a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not *372 in itself criminal or unlawful by criminal or unlawful means.” 5 R. C. L. 1061, §1. In another section of the same work, the law governing the proof of such a conspiracy is thus succinctly stated and well sustained by authority: “Conspiracies need not be established by direct evidence of the acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons ac-. eused, done in pursuance of an apparently criminal or unlawful purpose in common between them. The existence of the agreement or joint assent of the minds need not be proved directly. It may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the. same so as to complete it, with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. If, therefore, one concurs in a conspiracy, no proof of an agreement to concur is necessary in order to make him guilty.” 5 R. C. L. 1088, §37, and authorities cited. See, also, Eacock v. State (1907), 169 Ind. 488, 502 , 82 N. E. 1039 ; Cook v. State (1907), 169 Ind. 430, 433 , 82 N. E. 1047 ; McKee v. State (1887), 111 Ind. 378, 383 , 12 N. E. 510; Archer v. State (1886), 106 Ind. 426, 432 , 7 N. E. 225 .

*373

5. 1. 6.

*372 The above statement, in its substance, covers each of the contentions made by appellant as to the sufficiency of the proof in this case and serves to sustain the ver *373 diet of the jury that appellant is guilty of the offense charged. The fact that the evidence may also tend to show that ..appellant was an accessory to the crime of arson does not prevent his conviction for conspiracy. The doctrine of merger of offenses can have no application where, as in this case, the two crimes are of equal grade, and it rests with the State to elect which it will prosecute. Hamilton v. State (1871), 36 Ind. 280, 287 , 10 Am. Rep. 22 . The verdict of the jury is contrary neither to the law nor to the evidence. Although the uncorroborated testimony of an accomplice should be received with caution, yet there is no rule of law forbidding a conviction on his evidence alone. Ayers v. State (1882), 88 Ind. 275 ; Johnson v. State (1879), 65 Ind. 269 ; Nevill v. State (1878), 60 Ind. 308 .

7. Such other grounds of the motion for a new trial as have not been waived by a failure to discuss the same in appellant’s brief challenge the correctness of certain instructions given by the trial court. Appellee insists that these questions may not be considered for the reason that the instructions have not been properly brought into the record. The case of Curless v. State (1908), 172 Ind. 257 , 87 N. E. 129 , 88 N. E. 339 , relied on by appellee, and similar'decisions, were overruled by this court in Spurlock v. State (1916), 185 Ind. 638 , 114 N. E. 209 , and it is now the rule that where, as in this case, an original bill of exceptions containing the instructions is embodied in the' record, and properly certified to by the- clerk of the trial court, it will be treated on appeal as though copied into the record in accordance with the statutory direction.

*374

8. 9.

*373 Most of appellant’s objections to the instructions, however, may be' treated collectively and disposed of by *374 an application of the principles: (1) That instructions are not to be considered by fragments or - separately, but as a whole, and if, when so considered, they state the law correctly there is no error. Eacock v. State, supra. (2) That error cannot be predicated on the giving of an instruction which states the law correctly as far as it goes, in the absence of a request for a more complete instruction and a denial of such request which results in harm to defendant. Bartlow v. State (1915), 183 Ind. 398, 401 , 109 N. E. 201 ; Harris v. State (1900), 155 Ind. 265, 271 , 58 N. E. 75 .

The remaining objections, in their substance, have been disposed of by our conclusions above stated. No error appearing, the judgment of the trial court is affirmed.

Note. — Reported in 115 N. E. 54 . See under (2, 3) 12 C. J. 547, 633; 8 Cyc 623, (5) 12 Cyc 134. Conspiracy, merger of offenses, 3 Am. St. 491.