State v. . GeorgeState v. . George
The prisoner is indicted, together with Mary Meadows, for the murder of James Meadows, her husband, the first as principal and the second as accessory before the fact. The prisoner was tried alone. On the trial a witness was called to state “acts and declarations of Mary Meadows tending to show hostility to her husband and an intention to cause some great bodily injury to be inflicted on him.” (323) Objеction being made on behalf of the prisoner, the prosecuting officer stated he intended to introduce witnesses to prove a conspiracy between the prisoner and Mary Meadows. The evidence was admitted by the court. What these acts were, or what were the declarations of Mary Meadows, the case does not inform us, any further than that they tended to show the state of her feelings towards the deceased. An accomplice is certainly a competent witness, either for or against a partner in the perpetration of the offense, if he be not a party to the record; and if he be, his declarations will be heard, under certain restrictions. A simple bald declaration will not be received unless it be, in itself, an act; as in treason, to make it evidence, it be аccompanied by an act of which it is explanatory, for which act his accomplices are responsible; and the declaration must be a part of the res gestae, and be done in furtherance of the common design. Fur Co. v. United States, 2 Peters, 364; Gooding‘s case, 12 Whe., 460; 1 Phil. on Ev., 414; 4 Haw. P. C., Book 2, ch. 46, sec. 34; Cabiness v. Martin, 15 N.C. 110; 1 Greenleaf Ev., 345; S. v. Poll, 8 N.C. 442. The declarations and acts of Mary Meadows had none of the qualities rendering them evidence against the prisoner. The acts, as far as the case discloses, were not suсh as he was answerable for, nor were they done in furtherance of the common design, to wit, to murder James Meadows. They were descriptive, simply and entirely, of her feelings towards her husband, without pointing in the most remote manner to the prisoner. For this reason, if there was no other, I should send the case back to another jury.
But there is another and still more formidable objection to thе sustaining of the verdict in this case. The prosecuting officer, when he offered in evidence these acts and declarations of Mary Meadows, (324) was sensible that at that state of the case they were not admissible; to make them so, he declared his intention to prove a conspiracy, and it is to be presumed such a conspiracy as would authorize their introduction. The prisoner was on trial for the murder of James Meadows, and the conspiracy to be proved was one to effect that crime; and so the court must have understood it. Does the case show that any conspiracy was proved? It states, “that evidence was then introduced to show a guilty connection, and that it was not thought necessary to go into particulars.” It appears that after the introduсtion of this testimony the court took a recess, and upon resuming the trial the prisoner‘s counsel renewed his motion, or, rather, informed the court that he had not abandoned it, and the evidence was not withdrawn from the jury. Whatever doubt might rest upon the admissibility of the acts and declarations of Mary Meadows, as proved, coupled with evidence of a conspiracy, to my mind it is perfectly clear that, as the case appears here, they were not admissible. The words “guilty connection” have no definite meaning as descriptive of any particular offense. The combination of a parcel of smugglers is a guilty connection; so to rob, or to commit an assault or battery, or to strike for higher wages, all these are guilty connections, punishable by law. But the words, in common parlance, when applied to a man and woman, mean a carnal connection. If A. charge B., a woman, with having a guilty connection with C., ninety-nine men out of every hundred will understand it as a charge of incontinence on the part of B. And if the words were introduced into a declaration for slander, with proper averments, no jury would hesitate to hold them slanderous. And we are required to hold that these vague expressions show that a conspiracy to murder James Meadows existed between the prisoner and Mary Meadows, for it is the only ground upon which her acts and declarations were, or could be, held admissible. It is precisely as if the State, after promising to prove the existence of (325) a conspiracy, had offered no evidence of it. In such a case it cannot be denied that the admission of the declarations would be illegal and erroneous. The State did not redeem its pledge; it did not
When the declarations were first offered they were objected to, and when the guilty connection was proved the motion to reject them was again renewed in substance. What more the prisoner could do I cannot perceive. It appears to me he did all, through his counsel, it was necessary or proper for him to do to bring his objectiоn before the court. It surely was not necessary for him to ask for an instruction from his Honor that these acts and declarations of Mary Meadows were not evidence against him. His Honor had already decided that (327) they were. I consider the declarations and acts of Mary Meadows as given to the jury without proof of any conspiracy between her and the prisoner, and in this there was error.
In my opinion, the prisoner is entitled to a venire de novo.
Addendum
As to the prisoner‘s liability to be affected by the confessions of others, it may be remarked, in general, that the principle of the law in civil and criminal cases is the same. In civil cases, when once the fact of agency or partnership is established, every act and declaration of one in furtherance of the common business, and until its completion, is deemеd the act of all. And so in cases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration making a part of the res gestae, of one conspirator or accomplice in the prosecution of the enterprise is considered the act of all, and is evidence against all. Each is deemed to assent to, or commend, what is done by any other in furtherance of the common object. But after the common enterprise is at an end no one is permitted, by any subsequent act or declaration of his own, to affect the others. 1 Greenleaf Ev., 233; S. v. Poll, 8 N.C. 442; United States v. Gooding, 12 Wheat., 459. 2 Peters, 358; 2 Stark. Ev., 232, 237; Roscoe on Ev., 60. The State had, first, to establish a conspiracy between the prisoner and Mrs. Meadows to murder Meadows before any evidence of declarations of hers were admissible against him. The case states that evidence was introduced to show “a guilty connection between the prisoner and Mary Meadows, which it is not thought necessary to repeat.” How, then, can we see, or say, that any conspiracy ever existed between the prisoner and Mary Meadows to “murder the deceased or to do him some great bodily (328) harm?” “A guilty connection — What about? What do these words mean? I must confess I cannot tell. I cannot say that a combination or conspiracy between them to kill the deceased is the plain
It is said that it was the prisoner who tendered the bill of exceptions, and it was his duty to stаte the fact (if it was a fact) that the declarations of Mary Meadows were admitted in evidence against him, when no combination between her and him to kill the deceased had been established. And, I ask, if he has not done so. If there had in fact been a combination to kill proven on the trial, then the judge ought to have refused to sign this bill of exceptions.
Addendum
I think there ought to be a venire de novo upon the ground, simply, that the aсts and declarations of the woman which were given in evidence are not of such a nature as can affect the prisoner. To make the acts and declarations of one person those of another, or to allow them to operate against another, it must appear that there was a common interest or purpose between them; as appliеd to the case before us, that there was a conspiracy to murder the deceased, (329) formed between his wife and the prisoner. But that is not all which ought to appear. Before the acts or declarations of one of the conspirators can be received against another it must be shown that they were acts done and declarations uttered in furtherance of the common design, or in execution of the conspiracy. They must be acts and declarations of the one that were authorized by the other, or such as became necessary in the prosecution of the joint business or criminal conspiracy. It has, indeed, been held in this State that the declarations of one of the parties, unless they accompany acts, so as to come within the rule of pais res gestae, can only be received against himself. S. v. Poll, 8 N.C. 442. But, admitting that to be too strict a rule, no case has carried the doctrine further than has been just mentioned, that is, that the acts and declarations must be such as relate to the common business or purpose, and in furtherance of it. Now, this evidence does not appear to be of that character. I do not deem it material or, rather, so indispensаble that the conspiracy should have established, in the
On this ground I think the judgment erroneous. I own that I am entirely of a different opinion from that of my brethren as to the consequences of the deficiencies in the bill of exceptions. It is to be recollected that this is a court of errors, and that every verdict and judgment prove to us their own correctness until the contrary appears. There is no case sent here, no report of evidence, on which we are to see all the facts set forth, that are legally sufficient to authorize the judgment given. But it lies upon the appellant to allege an error, and then to set forth, in his exceptions, such of the facts of the case as will show the opinion to which he objects to be erroneous in point of law. The bill of exceptions is the production of the appellant, and contains his words, with the signature and seal only of the judge to verify it. Thus looked at, it seems plain to mе, when the prisoner‘s exception says that evidence was given to show a guilty connection between him and Mary Meadows that, in common fairness to the presiding judge and to the State, we must understand him to admit that it establishes the guilty connection before spoken of in the exception, that is, one to murder Meadows. What other can be imagined in reference to this accusation? That, as it strikes me, must be the just interpretation of that expression, if it stood alone. But the conclusion is irresistible to my mind when the prisoner further states in his exception that he does not think it necessary to set out the evidence of that connection; (331) for what else can be inferred therefrom than that the evidence
I think, if this were a civil action, no one would doubt that it was not a case for reversal merely because the appellant had not set forth the evidenсe given to show the kind and extent of the connection between those parties. He would be told that if he chose to keep that in the dark, the judgment could not be reversed, if there could be any guilty connections that would justify the admission of the evidence, because it was incumbent on him to show affirmatively an error. It is (332) the same in criminal, and even in capital cases; for the statute puts all cаses upon the same footing, there being no means of bringing up any cause to this Court but by bill of exceptions and appeal thereon.
Supposing, then, the other point in the case to have been against the prisoner, I could not have united in reversing the judgment because the prisoner declined stating the evidence or used the vague expression, “guilty connection” — if, as the case stands, it can be considered vague. But upon the first ground I concur in reversing the judgment.
PER CURIAM. Venire de novo.
Cited: S. v. Dean, 35 N.C. 71; S. v. Dula, 61 N.C. 214; Hauser v. Tate, 85 N.C. 86; S. v. Turner, 119 N.C. 848; Henderson Co. v. Polk, 149 N.C. 108.