State v. Cole

31 Del. 279 | New York Court of General Session of the Peace | 1921

Pennewill, C. J.

We decline to grant the motion for binding instructions.

The accused denied any knowledge of the existence of a conspiracy to cheat or defraud the county, and offered the evidence of Furman G. Cole, who assumed full responsibility for the scheme by which the county’s money was embezzled. There was also ■ evidence as to the good reputation of accused for honesty, fair dealing and general observance of the law.

During the progress of the trial, and before the state had rested, an article appeared in a newspaper of general circulation in New Castle county, in which it was stated that, the state had presented damaging evidence against the defendants.

Counsel for the defendants called the attention of the court to said article, whereupon the court addressed the jury as follows:

Pennewill, C. J.

The court deem it their duty to speak to you about an article that appeared in the last Saturday morning issue of a newspaper of this city, which contained some comment on the evidence against the three defendants in this case. While it was but the expression of the opinion of the writer, it was, nevertheless, entirely improper under the circumstances, the case being in process of trial. The article referred to may not have been seen by any of you, and if it was, it may not have made any impression on your minds, prejudicial to any of the defendants. But we want to impress upon you the fact that you are not to be influenced in the slightest degree by such article, or anything else you may have seen or heard about this case, other than the testimony given from this stand. We think it unnecessary to say anything more in this connection to gentlemen of your intelligence, fairness and integrity. But we do want to say that newspapers have no right to comment on the effect of the evidence given in a case on trial, and we hope and believe it will not be done again.

Defendant’s counsel did not request the court to take any action on account of said publication, being satisfied, apparently, with calling attention to it, and leaving the court free to do whatever seemed proper under the circumstances.

But in arguing their motion for a new trial, after the jury had found all the defendants guilty, one of the three grounds relied on (the other two being that the verdict was against the law, and that the verdict was against the evidence) was the newspaper article above mentioned.

It was not shown that any of the jurors had seen, read or heard of the article, but counsel insisted that the article being in a newspaper of general circulation throughóut the county, it must have come to the knowledge of one or more of the jury and prejudiced the defendant’s case.

The court were of the opinion that under the facts above stated, a new trial should not be granted, and the motion therefor was refused.

Against the above contention of counsel for defendants, the state cited the following cases: Brown v. State, 85 Tenn. 439, 446, 2 S. W. 895; People v. Feld, 149 Cal. 464, 86 Pac. 1100; People v. Fong Sing, 38 Cal. App. 253, 175 Pac. 911, 915; United States v. McKee, Fed. Cas. No. 15,683; State v. Williams, 96 Minn. 351, 363, 105 N. W. 265; Peoples v. Lubin, 190 App. Div. 339, 179 N. Y. Supp. 691.

Pennewill, C. J.,

charging the jury:

The defendants in this case are on trial for conspiracy. There are numerous counts in the indictment, some charging that the defendants on March 15, 1920, did unlawfully conspire, combine, confederate and agree together, and with a certain Furman G. Cole, to embezzle from New Castle county of the state of Delaware, or cheat and defraud said county of divers sums of money, amounting in the aggregate to the sum of ten thousand dollars, paid to and received by, or to be paid to and received by the said Furman G. Cole, recorder of deeds, or by the said Furman G. Cole, as bailee, for the use of New Castle county, he being recorder of deeds, for said county.

Other counts likewise charge the defendants with conspiring with the said Furman G. Cole, recorder of deeds, to embezzle from said county of New Castle, or cheat and defraud said county of said sum of money received by him as recorder of deeds or as bailee. And such counts also charge that on the fifteenth day of March, 192'0, and down to January 11, 1921, the defendants well knowing that entries of all papers received in said office for record, and the recording fees therefor, are required by law to be made on a certain book kept in said office of Furman G. Cole, recorder of deeds as aforesaid, and known as the “Fee Book,” did from time to time fraudulently procure papers so left with the said Furman G. Cole, recorder of deeds as aforesaid, to be recorded in said office without entries thereof and the recording fees therefor to be entered on the said fee book, and thereby the county of New Castle was cheated and defrauded of the sum of ten thousand dollars, or the said sum of money was embezzled from said county, etc.

A conspiracy is the combination of two or more persons to do either an unlawful act or a lawful act by criminal or unlawful means with unity of design and purpose. The gist of the offense is the unlawful combination between the parties. No .formal agreement between the parties to the conspiracy charged is necessary. It is sufficient that the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and commit the offense charged. Conspiracy implies concert of design and not participation in every detail necessary to carry the general purpose or design into execution. Though the common design is the essence of the charge, it is not necessary to prove that the accused came together and actually agreed in terms to have that design and to pursue it by common means. If it be proved that the accused pursued, by their acts, the same object, often by the same means, one performing one part and another another part of the same, so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object.

A conspiracy may be shown either by direct evidence, that is, by the admissions and declarations of the parties or co-conspirators, or by circumstantial evidence; that is, by facts and circumstances from which the existence of the conspiracy may be inferred. Proof of a conspiracy will generally, from the nature of the case, be circumstantial. Circumstantial evidence is where some facts being proved, another fact follows as a natural or very probable conclusion from the facts actually proved, so as readily to gain the assent of the mind from the mere probability of its having occurred. It is the inference of a fact from other facts proved; and the fact thus inferred and assented to by the mind is said to be presumed; that is to say it is taken for granted until the contrary is proved. And this is what is called circumstantial evidence, and it is adopted the more readily in proportion to the difficulty of proving the fact by direct evidence. Such evidence, in order to warrant a conviction, must be sufficient to satisfy the jury beyond a reasonable doubt. The rule is that where the evidence is solely circumstantial, the jury must be fully satisfied, not only that the circumstances are consistent with the accused having committed the act or acts charged as constituting the crime but they must also be fully satisfied that the facts shown by such evidence are such as to be inconsistent with any other rational conclusion than that the accused was the party who committed the act complained of. The facts established by such evidence must be such as to exclude any other reasonable hypothesis or conclusion. State v. Stielger et al., 7 Boyce, 236, 105 Ail. 667.

Such are the general principles respecting conspiracy that are well settled, and that have been fully recognized by the courts of this state.

A conspiracy is proved when the jury is convinced by the evidence beyond a reasonable doubt that two or more persons did combine and agree together to do the unlawful act charged against them.

In order to constitute a conspiracy there must be a combination to do an unlawful act by at least two persons in furtherance of a common design, that is, the same design or purpose must be in the minds of at least two conspirators. A common design is the essence of the charge. A conspiracy may be formed and a party not be in it at the time of its formation, but may afterwards come in and be connected with the conspiracy, and in such case he is as guilty as he would be if he were in the first stage thereof, for he is deemed in law a party to all acts done by any other parties, either before or after, in furtherance of the common design.

While it is necessary for the state to show that the defendants had guilty knowledge, it is not required to show that guilty knowledge was imparted to all defendants at one and the same time, or by one and the same means. It is sufficient to show that each of the conspirators had guilty knowledge. If a person, understanding the unlawful character of a transaction, assists in the prosecution thereof in any manner with a view to forwarding the common purpose or scheme, he becomes a conspirator. And while a combination or agreement to do an unlawful act must be shown, it is not necessary that the act should be actually done, or if done that a party to the agreement profited thereby.

Evidence of good character is to be taken and considered by the jury in connection with all the other evidence in the case, and given such weight as in their judgment it is entitled to.

As we have said, it is necessary, to constitute a conspiracy, that at least two persons shall conspire; that there shall be an agreement, combination or confederation; that there shall be a common design, and that there shall be a purpose or design to do an unlawful act, or to do a lawful act by an unlawful means.

These are essential elements of conspiracy, and in order to convict the defendants it is necessary for the state to prove the existence of each of them beyond a reasonable doubt.

In conclusion, gentlemen, we say that in this, as in every criminal case, the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, therefore, after careful considering all the evidence you shall have a reasonable doubt of the guilt of the prisoners, or any of them, such doubt will inure to the benefit of any or all as to whom you may entertain such doubt, and as to such defendant or defendants your verdict should be not guilty. But it is our duty to instruct you that by reasonable doubt is meant not a speculative, or mere possible doubt, but a real, substantial doubt, and such as remains in the minds of the jury after a careful and conscientious consideration of all the evidence.

There being three defendants in the case the jury may find any one of several verdicts, according as the evidence shall in their judgment warrant. They may find a verdict of guilty as to all the defendants, they may find a verdict of guilty as to two and not guilty as to one, they may find a verdict of guilty as to one and not guilty as to two, or they may find a verdict of not guilty as to all three.

Verdicts, guilty.

Note. — On the morning of the second day of the trial, the court was informed that Furman G. Cole, a convict in custody of the trustees of the New Castle County Workhouse, was in court without having been brought in on habeas corpus ad testificandum, or by order of the court. At the conclusion of the case, and after the jury had retired to their room for deliberation, the court made the following announcement:

Referring to Furman G. Cole’s presence here, and the manner in which he was brought here, the court want to say that the proper procedure for bringing a prisoner from the workhouse to testify in this court is an application to the court made for that purpose, and such must be the procedure in the future.