CONCURRING OPINION The facts have been clearly stated by my brother, Young, and from the evidence, circumstantial and direct, the jury had the right to find that both appellants had conspired to cause the child to sicken and die. Here we find a series of malicious assaults and batteries, executed as a part of a scheme, plan and design, the natural and probable consequences of which would be the illness and death of the victim. The acts of abuse grew out of wicked and corrupt motives, and were attended by such circumstances "as carry in them the plain indication of a heart regardless of social duty, . . . fatally bent on mischief."Harris v. State (1900), 155 Ind. 265, 271, 272, 58 N.E. 75. Malice, which is an essential element of murder in the second degree, was properly implied from these deliberate and cruel acts against a young and helpless child. Harris v. State, supra.
Where the purposes of a criminal conspiracy have been executed and accomplished, all the conspirators are guilty of the ultimate crime as committed. Archer v. State (1886), 106 Ind. 426, 7 N.E. 225; Waldon v. State (1914), 182 Ind. 112, 104 N.E. 300;Peats v. State (1938), 213 Ind. 560, 12 N.E.2d 270;Pinkerton v. United States (1946), 328 U.S. 640, 90 L.ed. 1489, 66 S.Ct. 1180.
The jury had the right to find that the appellants intended the natural and probable consequences of their acts. Newport v.State (1895), 140 Ind. 299, 39 N.E. 926. When the specific results of a conspiracy have *Page 346 been accomplished, the conspirators are presumed to have intended the natural consequences of their acts. United States v.General Motors Corp. (1941), 121 F.2d 376. Therefore the jury had the right to find that the killing was done purposely, which is an essential element of murder in the second degree as defined by § 10-3404, Burns' 1942 Replacement.
Because the evidence was sufficient to justify the jury in finding the death of the child was caused by both appellants acting purposely and with malice, the judgment should be affirmed.
GILKISON, J., concurs in this opinion.
NOTE. — Reported in 85 N.E.2d 489.