concurring-in-part-and-dissenting-in-part">

Concurring and Dissenting Opinion

DeBruler, J.

Appellants were charged in two separate counts. The two counts joined by the prosecution in the indictments were for conspiracy to deliver heroin and outright delivery of heroin. The object of the conspiracy was the delivery of heroin to Bobbins and Sawyer. The conduct of appellants in joining together with the purpose of making this delivery occurred in their apartment at the same time that Bobbins and Sawyer were there and actually received the drugs. Under these circumstances the conspiracy should be deemed merged in the substantive offense which was the object of the conspiracy. And this result should obtain even though an acquittal for such a substantive offense may not bar a charge and a trial for the conspiracy to commit that substantive offense. State v. Elder, (1879) 65 Ind. 282. And this result should obtain even though appellants have not raised the merger issue. Pinkler v. State, (1977) 266 Ind. 467, 364 N.E.2d 126; Swininger v. State, (1976) 265 Ind. 136, 352 N.E.2d 473, 479. Upon application of the principle of merger, I would reverse appellants’ convictions for conspiracy.

However, I join with Justice Prentice and the majority in affirming appellants’ convictions for delivery of a controlled substance.

Note. — Beported at 364 N.E.2d 1176.

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