State v. Ah Tom

8 Nev. 213 | Nev. | 1873

By the Court,

Hawley, J.:

This appeal is taken from an order of the district court refusing a new trial and from the judgment. The defendants were jointly indicted and tried for the crime of grand larceny.

During the trial of the cause tire State was allowed to introduce in evidence certain declarations made by the defendant, Ah Tom, to Chinese merchants in San Francisco several days after the larceny was committed, to the effect that he was entirely.innocent of the offense but knew that Ms co-defendants were guilty. Neither of the other defendants were present when this statement was made. The admission of this testimony against the objections of defendants, Ah Mok, Ah Ping and Ah Loy, was clearly erroneous.

If there had been complicity between all of the defendants in the commission of the offense, the declarations made by either after the commission of the offense co.uld not be used as evidence against the other defendants. A mere gratuitous assertion made by a defendant charged with crime, exculpating himself and inculpating his co-defendants, should never be received as evidence against any one but himself. 1 Phill. Ev. 97; 1 Greenleaf Ev. Sec. 111; Commonwealth v. Hunter, 7 Gratt. 644; U. S. v. White, 5 Cranch C. C. R. 42; State v. Hanney, 2 Dev. and Bat. 390.

The admission of. this testimony was calculated to mislead the jury to the prejudice of the defendants, Ah Mok, Ah Ping and Ah Loy, and was such an error of law as necessitates a reversal of this case as to them.

Is the testimony contained in the bill of exceptions sufficient in law to sustain a conviction against the defendant Ah Tom ? Entertaining the opinion that appellate courts should never disturb the verdict of a jury upon this ground when there is any legal evidence tending to prove defendant’s guilt, we have carefully examined the record in this case and have arrived at the conclusion that there is no competent evidence to sustain the finding of the jury against the defendant Ah Tom.

The judgment and order appealed from are reversed and the'cause remanded for a new trial.