*1 рroperty merely sugges was stolen is at best time, tive. The fence incident is remote in not anodes, identified with 60" and is not connected with appellant. opinion justify In our it is insufficient to a convic charged. tion the offense opinion
Since
our
the evidence is insufficient to sustain
jury,
verdict to
this cause is reversed with directions
grant
appellant’s
motion for new trial.
Arterburn,
Myers, JJ.,
Achor, J.,
Jackson &
concur.
participating.
Reported in
Note. —
Gaynor et al. v. Indiana. 30,233. Filed June
[No. 1966.] *2 Tetelc, Charlеs K. Whitted Gary, and Bernard M. for appellants. Dillon, Attorney General, Dorn,
John J. and Carl E. Van Deputy Attorney General, appellee. Appellants herein, being- Joseph Gaynor, Car-
Myers, J. Apieella Casmir, charged by men and Cass indictment conspiracy second-degree with the crime of to commit bur- glary they unlawfully, knowing-ly in that feloniously did combine, conspire, agree confederate and to and eаch burglariously other the felonious intent to break and enter building (here- business wherein was located the tavern Tavern) inafter called State of Vasco and Vincent Cataldi unlawfully carry away personal goods take and prop- erty of the Cataldis.
Appearing by counsel, in court each waived by jury plea change trial guilty. and entered a A taken,
judge and the cause was tried to the court before was Judge. Special Each Holland as the Hon. Louis C. guilty sentenced to a term of not less than and was was found years than fourteen in the Indiana Prison nor more two Appellant and costs. Casmir’s and fined sum $25 during good suspended he his behavior and was sentence was probation. A motion for new trial filed and 'was appeal overruled. This followed. overruling upon motion for trial relied as new assignment Among specifica- for the of errors. basis finding are of error in the motion the court
tions contrary hot sufficient evidence and was was sustained to law. appellee
Evidence most favorable to reveals that about morning 30, 1960, Hammond, a.m. on the of December 3:00 officer, Merritt, patrolling Indiana, police Trulan surrounding acquainted by He area State Tavern. *3 sight appellant time, with Casmir. At that hе first saw Casmir in a 1960 model white-over-red Chevrolet the left-front with parking light out, about a half from block the State Tavern. A minutes later he saw this near the few Chevrolet Tavern, occupants there and were three in the car he whom identify. time, could not The third he saw the same car occupants park with three near the Tavern and leave. The only person car came back and there one was in it who was Casmir, lights identified the officer as who left with the happened period off. This all within a minutes. The car directly turned into the street even with the Tavern and stopped. Two men came from the rear of the Tavern and got time, into the car which drove off. At that the officer checked the safe the Tavern which was located from the front door the left and was behind the bar inside the sidewalk, front window. It was not visible from the Upon could be seen from the window in the door to the left. inspection, only he could see safe—there was a vacant spot. building He went around to the rear of the where there remodeling wherein some construction and work was returning Upon a insulation and air ducts. hole filled with was again passed him building, car the front of the same going south. subsequently police station,
The offiсer called the he saw admitted that owner came to the The officer Tavern. therein. Tavern, no did he one nor see However, out of the rear he came that the two men who states tall; a approximately one wore the Tavern six feet were on fingertip appeared to have coat, length, and the other dark next jacket cap. police line-up station a At the wearing a day, appellant cap and Gaynor a had on sweater; fingertip coats. both dressed in dark Herkey, Hammond, Edward police from
Another officer appellant Casmir acquainted he testified that 30, 1960, morning about him on the of December saw a.m., with two other in a 1960 Chevrolet 3:45 red-and-white sitting gas station, on a in a male adults. The officer was walking Court, on a beat. street known as while Willow рassing a train at had a halt a car come to Casmir’s put crossing. police car which Behind a Hammond him came spotlight rear It was driven Officer window. Mamala, for about twelve who had known Casmir got car, Mamala’s years. out his to Officer Casmir went greetings. During exchanged squad this car and New Year’s time, in the front seat Mamala noticed some one Officer According they departed. to Officer сar. Then Casmir’s Herkey, about one Casmir’s went Court car west Willow got yards, stopped. A man out with card- hundred then along box, the railroad he truck board which under parallel ran He was stated tracks which to Willow Court. *4 slender, jacket height, in a and dressed be medium build truck, cap. and he box under ski After sweater car, got driven off. Officer he returned in was Herkey in It contained two was the box. went see what large scrеwdriver, pipe revolvers, crowbar, hammer, a wrench, punches. some chisels and The officer called the dumping station after into contents another box and taking original back where it. Ten he found minutes later crossing he saw Casmir stopped the railroad He tracks. by Snyder. Officers Mamala and There were three of them handcuffed, were Herkey who identified them as Officer Casmir, appellants, Gaynor Apicella. Tavern,
ofOne the owners of Cataldi, Vasco stated that he had closed the Tavern five or ten minutes after a.m. 1:00 and left it intact. he When returned at a.m. 3:00 there was frame, broken door the door between kitchen and dining-room pried open was broken and and the lock was broken. The private safe was inside the back door dining-room, having seventy-five been moved at least feet. There wheeling were tracks on the floor made the safe. These were not there when he home. went The door had a mark of some pried kind of tool that the lock off looked which like a three-quarters screwdriver with a face about of an inch wide. screwdriver, doorjamb a section of the with tool im-
pressions in gloves the area catch, pair of the lock or Chevrolеt, found in the some air insulation material from an together duct in Tavern, jacket, awith black all sent Laboratory FBI Washington, C., D. for examination. Special Agent A of the FBI testified that the had screwdriver made one of the door-jamb. marks on the It also gloves determined that the material found on the was similar insulating material found in the air duct. No wood fiber could jacket. be found on the
It has been held conspiracy that a does not need to rest solely giving on words express may agreement, rise to an
be inferred from persons acts and conduct accused pursuance done apparent of an criminal or purpose unlawful Smith, common between them. Peak (1961), v. State 794; 170 N. E. 2d Steffler v. 230 Ind. 104 N. E. 2d
475
upon
presented herein
which
sufficient evidence
There was
charged,
appellants guilty as
the court
havе found
could
Chap
contrary
finding of the
is not
to
the
court
law.
so
666,
pell
(1940),
any any manner affected of the defects: any imperfection or “Tenth. For other defect which rights prejudice not tend to the does substantial Stаt., upon the Ind. 9-1127 the defendant merits.” Burns’ § (Tenth), (1918), Ind. Replacement; 1956 Lucas v. 187 709, N. 121 E. 274. not constitute error. This variance does reversible argue merely being present Appellants the rule that being not vicinity present or when a crime is committed is. enough person conspiracy to guilty make a of a to citing Carey crime, Ind. commit v. State 194 general rule, is the 144 the N. E. 22. While this opinion over previously forth are sufficient to fаcts set this innocence, presumption the so that rule come applicable. urged
Next, error in admit- it is that the court committed ting part on the certain formal offer State’s Exhibits without giving ob- to the State or the defendants a chance state jections thereon; summarily court and be heard such exhibits admitted them on its own motion. Those gloves, screwdriver, pair of doorjamb, as the box, insulating metal, mаterial, pieces the cardboard of sheet appellants’ case, In counsel made each tools others. general objections exhibits, introduction these interrupted Judge, who times stated that several ruling pending he would them receive evidence objection. following colloquy place:
As State’s Exhibit took “THE COURT: “Q. you going Are offer Exhibit State’s No.
separately?
“A. I would like to.
“THE COURT: right.
“All
“MR. TETEK: object “The defendants to ex- the introduction said right hibits objection. and reserve the to be heard on the “THE COURT: right, my ruling.
“All will I reserve “(cid:127) n != [*] [*]
“THE COURT INTERRUPTING:
misunderstanding every
be
“So
will
no
the
exhibit
State has marked and tendered
been
has
introduced and
part
record,
made a
mistake,
of the
so there is no
are
all
record,
properly connected,
they
so the chain is
I feel
should be
now.”
upon
was the
This
tenor
the court’s remarks
the intro
ruling
duction
each of State’s Exhibits —that a
would be
оbjections.
on
reserved
the
appellants
Counsel for
right
reserved the
be
objections,
to
heard on the
any
the
objections
record does not show that
presented
afterward and heard
the
Nor
court.
the
does
given
record
opportunity
show that
were not
argue
objections
to
any
state and
their
time before the
They
argue
attempt
conclusion
the trial.
to
in their brief
inadmissibility
for
rеasons
of the exhibits.
It is the rule
appeal,
that on
obj
an
is held to the same
ections
judge.
enlarge
may
which were
to
made
the trial
He
objections
appeal.
these
Richeson alias etc. v. State
1, 4, 116
101,
233
objections
Ind.
N. E. 2d
and cases cited. The
general
nature,
herein were
specific grounds.
no
stated
v.
for reversal. Pocket
as causes
not available
These are
fact,
601,
In
599, 600,
Appellants contend interrogate witnesses, interrupt and to counsel frequently as a result an of discretion abuse and that such having prevented a fair from appellants were of which Judge duty it held that is It has been trial. developed case see that truth a criminal right propеr questions propound purpose he has the this Long partiality. et al. v. without witnesses during Judge 481, Remarks (1884), 95 Ind. 487. erroneous, always trial, do not amount progress if even of a questioned if of the court was action error to reversible complaining party or interfere tended to not harmful 169, (1930), 202 Ind. Rhodes v. State trial. fair N. 171 N. E. E. Judge by ill will was not motivated
Appellants admit the *7 Prosecutor, practicing Deputy a malice, a former or but was Judge; as experience aas that lawyer, and without might interested have become an he Deputy Prosecutor “inadvertently stepped from participant biased and and objection Judge’s However, raised no was the bench.” by appellants’ cannot counsel. We admitted activities. This is Judge interrupts guess speculate of a who or as to motives trying only except presume he to elicit witnessеs shown. truth, no of discretion is especially abuse when Affirmed. opinion. Jackson, J.,
Arterburn, J., dissents with concurs. Achor, participating. Rakestraw, J., J., not and C.
Dissent agree Jackson, with the conclusions am unable J. I majority opinion thereto. and dissent reached in the charged Appellants by with the crime indictment degree conspiring of burglary. to commit second From con- charge appellants perfected viction appeal. on such this indictment, omitting caption, signatures and endorse- ments thereon reads as follows: “The County, Jurors of Grand of Lake good Indiana, charged misdemeanors in men, duly legally impaneled and lawful and inquire and sworn to felonies and certain into Lake, body County and for the said authority Indiana, the name and of the present on their GAYNOR, oaths that one JOSEPH CAR- CASMIR, County, MEN APICELLA and CASS of said day December, A.D., 1960, County 30th and said aforesaid, unlawfully, knowingly State and agree did then and there feloniously unite, combine, conspire, and confederate other, to and object purpose each with and to and with the unlawful and intent and felonious then unlawfully, feloniously there burglariously and break and enter, building structure, into a certain and other than dwelling place a certain business and house habitation, human to-wit: building housing then and there the tavern of VASCO CATALDI and VINCENT CATALDI situate, intent then thereby and there and to unlaw-
fully feloniously burglariously steal, carry and take and away personal goods of the said VASCO CATALDI CATALDI, being and then contrary VINCENT and there provided, form statute such cases made and against peace dignity and of the state of Indiana.” indictment, appellants, To this counsel, appeared with their open jointly court severally arraignment, waived by jury, plea guilty. trial waived and entered a of not Thereafter each filed change his affidavit for Judge. Thereupon panel venue from the pur- was named statute, suant to the defendants and the State of Indiana Prosecuting Attorney each struck a name from such leaving panel, the name Honorable C. Louis Holland who appointed, qualified jurisdiction and assumed in the cause. *8 Thereafter this cause was submitted to the court for trial jury. without the intervention of a for Witnesses the State were sworn the and State submitted evidence and rested. rested, jointly the defendants and had sev- the State After finding guilty. of for a The court erally the court moved appellant motions. Each then defendants’ rested. overruled appellant guilty and each sen- Thereafter, the court found custody of appellant and control the Warden tenced each period of than for a not less Prison of the Indiana State years, a fine to which was added more than fourteen nor two prosecution. The the costs the and in the sum $25.00 during suspended prison Casmir was sentence period probation on for a good and he behavior years. of three separately severally, and and
Thereafter the for time, for trial. The motion a motion a new within filed (4) grounds, the of which four first a new trial contained alleging (13) paragraphs; contained thirteen error law finding is not ground that Court second “[t]he evidence;” ground by was that the third sustained sufiicient law;” finding contrary fourth of the Court “[t]he alleged irregularities proceedings ground in of the court Judge by the defendants of discretion which and abuse this, having prevented trial in from a fаir “[t]hat interfering in wrongfully the Court did abuse his discretion orderly processes of trial this cause and did with the interrupt interrogation actively partici- witnesses introducing asking pated questions witnesses .” into evidence own motion State’s exhibits. . . his single ground Assignment The of Errors herein is the overruling Appellants’ Court Motion New erred in “[t]he Trial.” may appellee be sum- evidence most favorable to
marized as follows: Appеllants vicinity of a business were seen and, automobile, an
establishment both on foot doorway portions of business 2. That said certain with, having tampered signs of been establishment showed and, *9 appellants leaving of the That one the was seen auto
occupied appellants. the another of That such deposited under truck from a box a some distance the business and, hereof, to referred at one establishment deposited tools, box 4. That the so cоntained firearms alleged of have the tool one which was a screwdriver to been tampering doorway in with the in the above mentioned used (a tavern). business establishment allegations indictment, appellee support of In the of the testimony expert into of evidence an FBI who was sufficiently unable to establish a connection the between examined, being tools those in mentioned cоntained the above box, tampered doorway and the with of the sections provide any The witness to tavern. was unable connection appel- between on the one of the fibers insulation coat of burglary. alleged and fibers lants found the site ownership proved There was no evidence that introduced any any (3) the tools mentioned at three in of the above defendants.
A review of record a part reveals total failure on the appellee prove attempt to to appellants even combined, conspired, agreed confederated and to and each other to break and enter into the Cataldis, etc., tavern charged as in the indictment. The evidence adduced was an attempt prove burglary, to a not sustain the averments of charge the indictment. The on which were tried burglary, conspiracy commission burglarize. prove conspiracy charged Failure to requires judgment. a reversal of the Mattingly (1957), 326,
As was said v. 237 Ind. 650, 145 N. E. 2d relationship evidence of a mere or associa- parties tion conspiracy. between the does not show page 337, cited above case further states at Testimony . might reasonably . from which it be in- parties charged ferred agree- that the an the affidavit had plan ment or some purpose, a common or to break into and enter place charged not, other than that in the affidavit is itself, Kelley sufficient to the conviction sustain herein. v. E. 3 N. 2d 65.” agree- prove In the at bar there total any case failure to plan appellants. ment or common into entered conspiracy intelligent “In ordеr to be a an must be agreement charged. and deliberate to commit the offense It parties is sufficient if the minds of understanding^ meet bring intelligent agreement an about and deliberate to do though agreement offense, the acts and commit is not *10 by any manifest formal words. Concurrence of sentiment co-operative and prise conduct in the unlawful and criminal enter- ingredients are the conspiracy. evidence to essential of criminal agreement an There must be prove and there be must agreement directly, or a such state of that an facts agreement may established legally Conspiracies be inferred. cannot be by suspicion. the mere Evidence of mere rela- tionship conspiracy.” Coughlin 92 parties or association between the does not show a (1950), 393, v. 395, 228 Ind. 718; E. Mattingly (1957), N. 2d 326, 368, v. State 237 Ind. 650; 145 N. E. (1952), 2d Rоbertson v. State 231 Ind. 370, 108 E.N. 2d 711. agreement I proposition am in with the Robertson and defi- nition, opinion am that an examination requires record in the case at bar to us reach same con- clusion reached Mattingly State, supra, court in v. page reading 340 as follows: “The that can be said the evidence in this record _most is that it relationship a establishes and association between appellant suspicion charged, and the others to tends sustain establish a guilt. enough is This not a conviction. supra
Robertson State, (1952), 368, 376, v. 231 Ind. 108 N. E. 2d 711.” language Hutcheson 345, v. State 355, is, feel, 2d peculiarly pertinent N. E. I to the presented issues in the case at bar. “In the case at appellee bar the mosiacs which contends guilt weave a require web around the defendant building our upon inferences, of inferences and arе therefore in judgment simply insufficient. The record is devoid of
facts circumstances properly from which inferences can be drawn to establish that entered into con- spiracy Doggett. stated, to bribe As we have heretofore suspicion which at the most tends establish evidence
guilt conviction.” not sustain sufficient judgment in this case is conclude the I therefore evidence, the should reversed cause be sufficient sustained to sustain trial court instructions and remanded trial. appellants’ for a new motion 2d Reported in 217 N. E. Note. — Kyser v. Indiana. 30,648. Filed June 1966.]
[No.