Davis v. State , 197 Ind. 448 ( 1926 )

Appellant and others were charged by the first count of an indictment with having feloniously conspired with certain other persons "to commit a felony, to wit: To then and there unlawfully and feloniously, without the consent of the owner take, haul, carry and drive away a certain automobile," describing it, and naming the owner; and he was charged by the second count with having feloniously conspired with the same persons "to commit a felony, to wit: To then and there unlawfully receive, buy, conceal and aid in the concealment of a certain automobile" of the same alleged description and ownership "knowing the same to have been unlawfully taken." He was tried separately. The jury returned a general verdict finding him guilty as charged. Overruling his motions to quash the second count of the indictment and for a new trial, respectively, are assigned as errors.

The objection urged against the sufficiency of said second count is that it does not charge a conspiracy to conceal, etc., an automobile with knowledge that it had been unlawfully 1, 2. taken "without the consent of the owner." But while it would be proper for the indictment to so charge, we think the allegation that the defendants "feloniously" conspired "to commit a felony" by "unlawfully" receiving, concealing, etc., an automobile, knowing it to have been "unlawfully" taken, sufficiently informed the defendants that they were charged with conspiracy to receive, conceal, etc., an automobile taken without the owner's consent. The words charging that they "did feloniously" so conspire "to commit a felony," as described, supply the more formal allegations of an indictment which might more specifically describe the alleged offense. That they conspired to "receive, conceal," etc., could not be felonious unless the automobile so received and concealed had been taken without the consent of the owner. Kaufman v. State (1874), 49 Ind. 248, 249, 250; Owen v. State (1876),52 Ind. 379, 381, 382; Semon v. State (1902), 158 Ind. 55, 57, 62 N.E. 625. To aver that an act was feloniously done "has the effect, as matter of pleading, to characterize the act complained of as having been done in a manner prohibited by the statute."Semon v. State, supra. It was not reversible error to overrule the motion to quash.

Appellant did not testify as a witness, and the statute giving accused persons the right to testify expressly enacts that, "if the defendant do not testify, his failure to do so shall 3. not be commented upon or referred to in the argument of the cause, or in any manner considered by the jury trying the same." § 2267 Burns 1926, Subd. 4, § 2111 Burns 1914, Acts 1905 p. 584, § 235. Appellant had been indicted jointly with ten others, among whom was Rex Schug, but was tried separately. Much of the evidence consisted of testimony relating what Rex Schug had said and done and what had been said and done by other alleged conspirators at his place of business in Hartford City, Indiana, when defendant Davis was not there. Witnesses testified that at the time of the trial Rex Schug was not living in Hartford City, and that they did not know where he then was. After the close of the evidence, an attorney representing the state, speaking of Rex Schug in his argument to the jury, said: "None of these amiable defendants have taken the stand and testified where he is." An objection to this language being interposed, he added, "other than the defendant now on trial." Nothing was done by the court in the way of admonishing the attorney that such language was improper, or instructing the jury that it was not proper and should not be considered; the court neither saying nor doing anything to indicate to the jury that counsel had no right to use such language in his argument or that they ought to disregard it. The defendant immediately moved that the case be withdrawn from the jury, and then moved that the jury be discharged, but each of his motions was overruled and he excepted. These rulings were erroneous. Counsel for the state had clearly violated a right expressly given to defendant by statute, and on objection being made had added a reference to "the defendant now on trial" which made the allusion to his failure to testify even more emphatic than before. Defendant did not waive the error, but promptly asked for relief by having the submission set aside and the jury discharged. And the court did nothing to cure the error, if, indeed, it were capable of being cured by an instruction or otherwise. Long v. State (1877), 56 Ind. 182, 186, 26 Am. Rep. 19; Showalter v. State (1882), 84 Ind. 562, 566; Blume v. State (1900), 154 Ind: 343, 355, 56 N.E. 77.

Over objections and exceptions by defendant, witnesses were permitted to testify that intoxicating liquor was drunk at Rex Schug's place of business at different times when defendant 4. was not shown to have been present or participating, some of the times being when the witnesses who gave the testimony said he was not there, others when it appeared by inference he could not have been present, and others when no attempt was made to show that he was present, or participated, or had any knowledge of what was done. It was not shown nor was there any attempt to show that this drinking of intoxicating liquor was in furtherance of the alleged conspiracy to commit either of the crimes charged, or had anything whatever to do with the alleged crimes or the conspiracy to commit them. It was error to admit this evidence.

As was stated above, defendant did not testify as a witness. But he called nine witnesses who testified that his reputation for honesty and integrity in the community where he 5, 6. resided was good before and up to the time this indictment against him was returned. In rebuttal, the state called a witness who testified that defendant's said reputation was bad, and, in answer to further questions, stated that he (the witness) was at the scene of the automobile accident in which defendant was injured in May, 1922, seven months before the automobile described in the indictment was stolen and a full year before it was shown to have been concealed in the stone quarry, and that defendant seemed to be badly hurt. He was then asked whether or not defendant was intoxicated at that time, and, over an objection and exception, answered that he thought he was. Such proof of his intoxication did not tend to rebut the testimony that his general character for honesty and integrity was good. Evidence of specific acts is not competent to prove general reputation. Griffith v. State (1895), 140 Ind. 163, 39 N.E. 440; Dunn v. State (1904), 162 Ind. 174, 182, 70 N.E. 521. And while the fact that defendant had been seen intoxicated could not have any probative value to establish whether or not his general character for honesty and integrity was good or bad, it might be highly prejudicial before a jury. This evidence should not have been admitted.

A conversation between the witness Locker and Rex Schug after the car in question was stolen and before it was put into the stone quarry, in which Schug said that 7. part of it had been stolen, was competent on the issue formed by defendant's plea of not guilty to the charge of conspiracy to conceal said car with knowledge that it was unlawfully taken. If the fact that it was a stolen car was being concealed at that time by means of changes made in its structure, and such concealment was finally consummated by acts of defendant and the witness in chiseling off the engine number and sinking the car in deep water in the stone quarry, as this witness testified, anything said by a party to the conspiracy before its final consummation was admissible against all parties thereto. And the direct testimony of Locker that defendant Davis afterward helped to remove the engine number and put the car in the quarry in order to conceal it justified the admission of this evidence.Card v. State (1886), 109 Ind. 415, 418, 9 N.E. 591.

The admissibility of testimony that the next Sunday after the car had been concealed in the stone quarry, Rex Schug told the witness, Locker, to report the car to the highway policeman 8. as stolen, is not clear. But, so far as appellant's brief has pointed out, carrying that report to the officer may have been part of the plan to conceal the car in question, by inducing persons who otherwise might search for stolen automobiles to believe that this one had been driven away out of the neighborhood. In order to show on appeal that an error was committed in the admission of evidence which might be competent under any state of facts, appellant must make it affirmatively appear that such a state of facts as would render it competent did not exist at the time it was introduced. Appellant's brief does not show this evidence to have been inadmissible.

The judgment is reversed, with directions to sustain defendant's motion for a new trial.