Archbold v. State

397 N.E.2d 1071, 73 Ind. Dec. 230, 1979 Ind. App. LEXIS 1493

• Court: Indiana Court of Appeals
• Decided: December 19, 1979
• Docket: 2-778A252
• Status: Published

Opinions

SHIELDS, Judge.

Appellant Keith Archbold was tried and convicted by jury of Conspiracy to Commit a Felony. He argues the offense was not committed because the named coconspirator was an undercover law enforcement officer acting within the scope of his duties and feigning participation in the criminal enterprise. We agree, and reverse the trial court and order Archbold discharged.

The statute under which Archbold was indicted provides, in part:

Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony . . . . IC 35-1-111-1 (Burns Code Ed.1975).¹

The issue is whether this statutory offense requires a criminal agreement necessitating a meeting of at least two culpable minds before the offense is committed or whether the offense is completed when a single individual with a culpable mind agrees with a second individual whose culpability of mind is not in issue.

This determination is critical because under the former, and traditional, definition of conspiracy, known as the bilateral concept, the cases hold a defendant cannot be convicted when the person or persons with whom he conspired only feigned his acquiescence in the “agreement.” If the statutory offense adopts the Model Penal Code’s unilateral concept which defines the offense in “terms of the conduct which suffices to establish the liability of any given actor, rather than the conduct of a group . . ” a defendant can be convicted even though the alleged coconspirator’s agreement was feigned.²

The Supreme Court in Jorman v. State (1928) 200 Ind. 388, 392, 163 N.E. 837, 838, recognized

(T)o constitute a conspiracy there must be a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose .

Then, in Johnson v. State (1935) 208 Ind. 89, 95-96, 194 N.E. 619, 621, the Supreme Court said:

In order to be a conspiracy there must be an intelligent and deliberate agreement to do the acts and commit the offense charged. ... In the case of Eacock v. State (1907), 169 Ind. 488, 502, 82 N.E. 1039, 1045, the court, in considering a charge of conspiracy, said:

It is sufficient if the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and commit the offense charged, although such agreement be not manifest by any formal words. Concurrence of sentiment and co-operative conduct in an unlawful and criminal enterprise, and not formality of speech, are the essential ingredients of criminal conspiracy.

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There must be an agreement or joint assent of the minds of two or more before there can be a conspiracy.

Similarly, in Lane v. State (1972) 259 Ind. 468, 470, 288 N.E.2d 258, 259, the Supreme Court recognized a “material element of conspiracy is the unified or concerted action of two or more persons.”

Finally, in Shelton v. State (1972) 259 Ind. 559, 567, 290 N.E.2d 47, 51, the Court summarized the Indiana courts’ view of conspiracy:

The Indiana conspiracy to commit a felony statute IC 1971, 35-1 — 111—1 (Ind.Ann. Stat. § 10-1101 [1956 Repl.]) requires the uniting or combining with any person or persons for the purpose of committing a felony. The'gist of such a conspiracy is the conscious coming together of minds for the purpose of committing a felony.

“In order to be a conspiracy there must be an intelligent and deliberate agreement to commit the offense charged. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to do the acts and commit the offense, though the agreement is not manifest by any formal words. Concurrence of sentiment and cooperative conduct in the unlawful and criminal enterprise are the essential elements of criminal conspiracy . . .” (Coughlin v. State [1950], 228 Ind. 393, 92 N.E.2d 718.)

(Emphasis added.)

Thus our Supreme Court has consistently-held conspiracy, as defined in IC 35-1-111-1, requires the joining together of at least two persons for the purpose of committing the felony — i. e., both persons are required to have the criminal purpose (intent) when they unite or combine.

This is consistent with the purpose of criminalizing conspiracy. It “. . .is designed ‘as a curb to the immoderate power to do mischief which .is gained by a combination of the means.’ ” (Citations omitted.) 15A C.J.S. Conspiracy § 36, p. 729 (1967). Conspiracy as an offense recognizes increased public harm by group action. It seeks to strike at the special dangers incident to group activity.

Therefore, conspiracy as traditionally defined and judicially interpreted requires an actual (subjective) intention in at least two persons because that is the prohibited harm. That being the case, whether the intended conduct ever results is immaterial. Thus, parties who conspire to commit the felony of burglary are not required to commit the burglary before the conspiracy is a consummated offense. Rather the moment there is an agreement, a meeting of the minds, to commit the burglary the conspiracy is consummated. Therefore, it is, of course, immaterial why the felony intended in the conspiracy is not accomplished. It is of no moment whether the co-conspirators have a faint heart, a flash of honor, are interrupted by detection or apprehension, or, indeed (as in the cases cited by the dissent) cannot fulfill their goal because it is factually impossible to achieve. Again, achievement of the goal (the intended felony) is not an element of conspiracy. For this reason, impossibility in achieving the goal of the intended felony is distinguished from “. . . the impossibility . due to an unknown fact involving the ‘co-conspirator’ (e. g., no intent to consummate the offense) . .. . .” (Dissenting Opinion, p. 1074) The offense of conspiracy does not occur, a crime is not committed, until two or more persons form the intent to commit a felony. The joint intent is the proscribed conduct.

Other states have followed this same rationale. See, for example, Delaney v. State (1932) 164 Tenn. 432, 51 S.W.2d 485;³ People v. Atley (1974) 392 Mich. 298, 220 N.W.2d 465;⁴ King v. State (1958) Fla., 104 So.2d 730.⁵ But see, State v. St. Christopher (1975) 305 Minn. 226, 232 N.W.2d 798.⁶

Further support for this bilateral concept view of the subject statute is found in Berry v. State (1930) 202 Ind. 294, 165 N.E. 61, 173 N.E. 705, and Copeland v. State (1961) 242 Ind. 290, 176 N.E.2d 894, reh. den. 178 N.E.2d 463, which, albeit in dicta, echoed the position that an acquittal of the alleged coconspirator destroyed the charge as to the other. This rule is the logical extension of the proposition that one cannot conspire with another who only feigns acquiescence in the proposal because without the joint criminal intent there is no agreement and thus no conspiracy. Delaney v. State (1932) 164 Tenn. 432, 51 S.W.2d 485.

We reverse the trial court’s judgment and order Archbold’s acquittal and discharge.

SULLIVAN, J., concurs. BUCHANAN, C. J., dissents with opinion.

1 . Repealed effective October 1, 1977 by Acts 1976, P.L. 148, § 24.

2 . Garcia v. State (1979), 394 N.E.2d 106, wherein our Supreme Court held the successor to the subject statute, IC 35 — 41-5-2 (Bums Code Ed. 1979), adopted the unilateral concept of the offense of Conspiracy.

3 . The applicable statute states it is a felony “for two or more persons to enter into or form any conspiracy or combination ... to take human life,” etc. 1897 Tenn.Pub.Acts, Ch. 52, Sec. 1.

4 . The applicable statute states, “any person who conspires together with one or more persons to commit an offense prohibited by law . is guilty, of the crime of conspiracy . Mich.Comp.Laws Ann. § 750.157a (West 1968).

5 . The applicable statute states “Whoever shall agree, conspire, combine or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy . . . .” Fla.Stat.Ann. § 777.04 (West 1976).

6 . The applicable statute states, “Whoever conspires with another to commit a crime . . .” Minn.Stat. § 609.175(2).