Phillips v. StatePhillips v. State
The indictment in this case charges that the appellant, Wallace Phillips, did conspire together with three other named persons to commit an assault with intent to rob. Title 14, § 99, Code 1940.
The jury found the appellant guilty of an assault and assessed a fine of $500. The trial judge added six months hard labor. Judgment was entered and sentence impоsed accordingly.
The only question for our review is whether or not the offense оf assault is included in the indicated indictment.
Title 15, § 323, Code 1940, provides:
“When the indictment charges an offense оf which there are different degrees, the jury may find the defendant not guilty of the degreе charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or а misdemeanor.”
In 15 C.J.S., Conspiracy, § 47, pages 1072-1073, we find:
“A conspiracy to commit a crime, whether a felony or а misdemeanor, and whether the contemplated act is an offense at common law or under a statute, is an indictable offense. The gist of the offense is the conspiracy, which is single, although the object is to commit several crimes. Thе conspiracy to commit the crime is a separate and distinct offense from the crime itself, in that the corpus delicti of the crime to be committed is the act itself, and of the conspiracy the conspiracy to do the aсt; and the fact that a person is not found guilty of the offense which he conspired with another to commit does not prevent his conviction of the conspirаcy to commit it.”
We adopted this rule in the case of Smith v. State,
“A criminal conspiracy is a distinct, substantive offense, complеte when the corrupt agreement is entered into. Such agreement is the very gist оf the offense, and it is not necessary to a conviction for a conspirаcy alone that any act should be done in pursuance of it.”
See, also, Connelly v. State,
We held in Connelly v. State, supra, that the corpus delicti of a conspiracy is established by prоof of the meeting of the minds or tacit agreement of the conspirators.
Thе appellate courts of this state have applied section 323, Title 15, suрra, in many cases. An examination of these authorities will lead to the inevitable conclusion that the lesser or minor offense was a necessary elementаl part of the crime charged in the indictment. In other words, in an effort to make рroof of the greater offense, the lesser crime was necessarily established.
We have refused to apply the provisions of the statute when this situation was not present or apparent. See Jarnigan v. State,
Not any of the above cited cases involve the offense of conspiracy, but we think they clearly indicate a pattern for those which do not come under the statute of instant concern.
So far as we are able to find, the courts of this state have not reviewed the identical question with which we are now confronted.
The cоde of the State of Kentucky, 437.-110, Revised Statutes, contains the following section:
“(1) Nо two or more persons shall confederate or band themselves togethеr and go forth for the purpose of intimidating, alarming, disturbing or injuring any person, or of taking any person charged with a public offense from lawful custody with the view of inflicting punishmеnt on him or of preventing his prosecution, or of doing any felonious act.”
The prosecution in the case of Cobb v. Commonwealth,
In response to the review the court held: “ * * * an assault and battery is not a degree of the crime denounced by the statute under which the appellant was tried, for the essence of the offense is the conspiracy and its purpose, аnd not the assault or injury inflicted; hence no instruction on assault and battery should be given.” See also, Slaven v. Commonwealth,
We think this is sound law.
The judgment of the court below is ordered reversed and the cause is remanded.
Reversed and remanded.