DISSENTING OPINION. The second count of the indictment charges that the appellant with certain other persons named therein, conspired to commit a felony to wit: to then and there unlawfully receive, buy and conceal and aid in the concealment of a certain automobile, knowing the same to have been unlawfully taken.
The felony attempted to be charged as the purpose of the alleged conspiracy described in the second count of the indictment is defined by § 2460 Burns 1926, § 2301c Burns' Supp. 1921, Acts 1921 p. 494. Section 1 of that act provides that, whoever unlawfully without the consent of the owner takes, hauls, carries or drives away any vehicle, automobile, car truck, aeroplane or airship, operated by electricity or steam explosive power, or any accessory or appurtenance contained in, on, or forming a part thereof, of the value of twenty-five dollars, or more, or whoever receives, buys, conceals, or aids in the concealment of such or any one or more of such, knowing the same to have been taken, shall be guilty of the crime of vehicle taking, and upon conviction thereof, shall be imprisoned in the state prison not less than three years nor more than five years and be disfranchised and rendered incapable of holding any office of trust for any determinate period to which may be added a fine of not less than $100 nor more than $5,000.
This count of the indictment is insufficient in that it does not charge that the defendants conspired to receive, buy, conceal, aid in the concealment of the automobile, knowing the same to be unlawfully taken without the consent of the owner. *Page 456
In Hinshaw v. State (1919), 188 Ind. 147, it is held that all the elements of the felony which is the purpose and object of the conspiracy must be alleged so directly and positively that the defendant may know what he has to meet and that the court may readily see what felony is purposed, and know how to limit the evidence. Indictments must be particular and specific enough in their charges that the grand jury may not base an indictment on evidence of one crime and the petit jury base a verdict on evidence of another crime. An indictment must be so plain that an acquittal or conviction can be pleaded in bar of a subsequent prosecution for the same offense.
In State v. McKinstry (1875), 50 Ind. 465, the court held that an indictment under such statute, charging a combination unlawfully to prevent the course of justice, and secure the acquittal of a certain person charged with a criminal offense, is insufficient, though perjury is shown to be the means by which it was proposed to accomplish the purpose.
In Landringham v. State (1874), 49 Ind. 186, it is held that the averments of an indictment for combining to commit a robbery should be as specific and full in describing the robbery as in an indictment for that felony and to charge a combining for the purpose of taking from the person forcibly and feloniously is not sufficient, but it is necessary also to allege that it was to be done "by violence" or "putting in fear."
In McLaughlin v. State (1873), 45 Ind. 338, the court held that the legislature has not the power to dispense with such allegations in an indictment as are essential to reasonable particularity and certainty in the description of the offense.
In Williams v. State (1919), 188 Ind. 283, the court said: "This court has consistently held that an indictment, as here in question to be good as against a motion *Page 457 to quash, must not only state facts showing the conspiracy, but also charge the felony with the same particularity as though the accused were to be tried for the felony alone." The crime being a conspiracy to commit a felony the purposed felony must be charged as specifically as though the defendant were on trial for that felony. Williams v. State, supra; Hinshaw v. State, supra;Green v. State (1901), 157 Ind. 101; Barnhart v. State (1900), 154 Ind. 177.
By § 1, Acts 1921 p. 494, supra, the offense of vehicle taking is described and the punishment fixed for the commission of such offense. In order to convict a person of the felony described in this section every essential element of the offense must be alleged and proved. One of the essential elements of the offense is that the taking shall be without the consent of the owner.
This defect in the indictment renders it insufficient to withstand the motion to quash. The motion to quash should be sustained.