| Ill. | Sep 27, 1887
delivered the opinion of the Court:
David Samples and Uriah Samples were jointly indicted by the grand jury of Logan county, for the statutory offence of attempting to produce an abortion upon the person of Lucy E. Cole. Uriah Samples was not arrested, but David Samples was tried under the indictment, in the circuit court of Logan county, and found guilty, and sentenced to the penitentiary for the term of one year.
Upon the trial, Lucy E. Cole testified that she was pregnant by David Samples; that he promised her that he would procure his brother, Uriah Samples, to bring her ergot, with which to produce an abortion; that Uriah Samples did deliver to her ergot, directing her how to take it; that she took the ergot as directed, but that it produced no result as desired; that David afterwards inquired of her whether she had taken the ergot, and what result it had produced, and when she informed him that she had taken it, but that it had produced no abortion, David replied that he would get her some more; that David did not get her any more ergot, but that Uriah did,—that he brought her two ounces of ergot about two weeks after he brought the first ergot to her, and Uriah then said that David told him to get that ergot and he would pay for it; that she afterwards saw David, and he asked her if it did her any good, and she told him no. The first time that Uriah delivered the ergot to the witness was about the middle of March, and the last time was the last of March.
The People introduced Mary Ann Hammerton, whom the court permitted, over the defendant’s objection, to testify that . she had a conversation with Uriah Samples, at her house, in the month of March, in regard to the condition of Lucy E. Cole, and that Uriah then told her that he (Uriah) had got the medicine for Emma, (meaning Lucy E. Cole,) and that David Samples told him-that if he (Uriah) would get the medicine, he (David) would pay for it.
David Samples testified in his own behalf, denying that he had ever promised Lucy E. Cole that he wrould get ergot or any medicine for her; denying that he ever got any medicine for her himself, and that he ever authorized or requested Uriah Samples to get any medicine for her.
There is no evidence, other than that of Lucy E. Cole and Mary Ann Hammerton, tending to prove that Uriah acted under the direction or procurement of David, and there being • a direct conflict between the testimony of Lucy E. and David, that of Mary Ann Hammerton is of material advantage to the People, as corroborative of the evidence of Lucy E., and the question therefore is, was it competent ?
It will have been observed that it is not pretended that Uriah was, at the time that he is alleged to have made the statement testified to by this witness, doing any act tending to produce an abortion, or to cause any one else to do so. He was not then purchasing medicine, directing medicine to be taken, or even carrying medicine for that purpose. His remarks were directed to a stranger, in nowise personally interested in the subject, and were simply and purely a narrative of something that he said had been done. “It is an established rule, ” says Phillips on Evidence, (vol. 1, Cowan, Hill & Edward’s notes, p. 205,) “that where several persons are proved to have combined together for an illegal purpose, any act done by one of the party in pursuance of the original concerted plan and with reference to the common object, is, in the contemplation of the law, the act of the whole party. It follows, therefore, that any writings or verbal -expressions, being acts in themselves, or accompanying and explaining other acts, and so being part of the res gesta, and which are brought home to one conspirator, are evidence against the other conspirators, provided it sufficiently appear that they were used in furtherance of the common design.” And the author, afterwards, at page 208 of the samo volume, adds: “But where words or
writings are not acts in themselves, nor part of the res gesta, but a mere relation or narrative of some part of the transaction, or as to the share which other persons have had in the execution of a common design, the evidence is not within the principle above mentioned, it altogether depends on the credit of the narrator, who is not before the court, and it can not therefore be received.” To the same effect is 2 Bussell on Crimes, (7th Am. ed.) 696; 1 Greenleaf on Evidence, (7th ed.) sec. Ill; Best on Evidence, (1st Am. from 6th London ed.) sec. 508; Patton v. State, 6 Ohio St. 470.
The distinction which the counsel for the People omit to observe is, that the declaration, to be admissible, must not only be made during the pendency of the criminal enterprise, but also in furtherance of its objects. A mere narrative to a stranger, related during the pendency of the criminal enterprise, but of a past event or occurrence, is just as objectionable as if related after the criminal enterprise has terminated. It is no part of the res gesta, and is a mere statement of what somebody else said or did, having no support from concomitant circumstances, and resting solely on the veracity of the narrator.
We think it was error to admit the evidence, and for that error the judgment is reversed and the cause remanded.
Judgment reversed.