| N.H. | Dec 15, 1869
The main question presented by the case relates to the testimony of Mrs. Haines concerning the admissions and declarations of Jennette Elliott, inculpating the respondent, Larkin. Were these declarations admissible in evidence ?
They were made in the course of a conversation which Jennette had with the witness, Mrs. Haines, very soon after the former returned from the west, which was about two weeks after the money -was stolen. The respondent was not present vhen they were made. These declarations implicated the respondent in the commission of the offence charged in the second count in the indictment, namely: receiving a portion of the stolen money.
It appears from the evidence that the prisoner and the party whose •admissions were received, acted together and in concert with others, in an unlawful conspiracy to obtain, by the direct larceny of Ann Elliott, the money of Edmund Elliott, her father.
The court charged the jury that all who are guilty of aiding, abetting, or assisting in the commission of crimes of this nature, or who participate in the fruits thereof, are in law principals ; that if they were satisfied that the three respondents unlawfully combined with Ann Elliott that she should .steal the money of her father for the common use and benefit of all four the parties; and that Ann, in pursuance of such agreement, did steal the money, and the prisoner, with the other respondents, actually received some of the money, knowing it to be stolen, then all found thus participating in the reception and use of the money, would be alike guilty with her who ..took it, and, in law, would be treated as principals with her; that if
These instructions were erroneous. It is undoubtedly true that where several combine together for the same illegal purpose, each is the agent of all the rest, and any act done by one in furtherance of the unlawful design, is considered in law the act of all. The evidence is very clear that the prisoner and Jennette were principals, equally with Ann, in the conspiracy to obtain the money; and if the indictment had been for the conspiracy, and not for larceny and receiving stolen money, evidence that Ann took the money would be competent to the conviction of Larkin, though Larkin was not present, aiding and abetting in such manner as to make him a principal in the theft. Proof of an overt act by one/ in pursuance of a conspiracy by several, is sufficient to convict all. Collins v. The Commonwealth, 3 S. & R. 220 ; Ex parte Bollman v. Swartwout, 4 Cranch 78.
But the respondents are not indicted for conspiracy; and the prisoner was not tried for larceny, but for receiving stolen money. If the charge against him had been for conspiring with the others to obtain the money, the instructions would have been correct; but to constitute one a principal in the actual theft, he must be present (‘ ‘ except in some special cases founded in necessity ” — Foster’s Crown Law 349), aiding and abetting at the fact, or ready to afford assistance, if necessary. The presence need not be actual and immediate, but it maybe a constructive presence; that is, the party, not actually present, must be near enough to take some active part in the prosecution of the enterprise, by aiding, assisting, encouraging or protecting the other party. 1 Russell on Crimes 26, 27; Fost. Crown Law 350 ; 4 Hawk. P. C. 201, 202.
In this case, the offence which the prosecuting officer elected to try was, that of receiving money, knowing it to have been stolen; and it cannot be said that a party participating in the reception and use of the money, would be considered in law as a principal with the party who stole it; although the degree of guilt maybe the same, and the punishment of the offence the same; (as by our laws, it is,) because the offences of stealing and receiving are totally distinct, and the same person cannot be found guilty of stealing and also receiving the same property. And in England, before the statute of 3 and 4, W. & M., receivers, unless they likewise received and harbored the thief, were guilty of a bare misdemeanor. Fost. Crown Law 373. Therefore where counts for stealing and for receiving are joined in the same indictment, the public prosecutor will be required to elect (as he did in this case) upon which count he will proceed. Rex v. Fowler, 3 C. & P. 413 ; Regina v. Blackson, 8 C. & P. 43.
The court also told the jury that if they first found that Jennette Elliott was an original instigator or confederate in this crime -with the respondents, then her declarations or admissions to Mrs. Haines
These instructions, also, were erroneous.
It is unquestionably true, that the acts and declarations of a conspirator, may, after sufficient proof of the fact of the conspiracy, be given in evidence to charge his fellow-conspirator. This is upon the ground that the act is the act of the whole party; that they are partners in a wrongful act, and so, mutually responsible; and their declarations stand upon the same ground as their acts. 2 Stark. Ev. 403. But this proposition is to be received, subject, always, to the limitation that the acts and declarations admitted, be those, only, which were made and done during the pendency of the criminal enterprise and in furtherance of the criminal object.
If the acts and declarations took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they must be rejected. To ,be admissible, they must have been concomitant with the principal act, and so connected with it as to constitute a part of the res gestee. 1 Gr. Evid. § 111; 2 Bishop on Criminal Procedure § 191; The State v. Thibeau, 30 Vt. 100" court="Vt." date_filed="1858-01-15" href="https://app.midpage.ai/document/state-v-thibeau-6576249?utm_source=webapp" opinion_id="6576249">30 Vt. 100; Patten v. The State, 6 Ohio State Rep. 467; Benford v. Sanner, 40 Pa. State Rep. 12; Commonwealth v. Ingraham, 7 Gray 47 ; Page v. Parker, 40 N. H. Rep. 62 ; United States v. Gooding, 12 Wheat. 460" court="SCOTUS" date_filed="1827-03-16" href="https://app.midpage.ai/document/united-states-v-gooding-85535?utm_source=webapp" opinion_id="85535">12 Wheat. 460 ; Am. Fur. Co. v. United States, 2 Pet. 358" court="SCOTUS" date_filed="1829-03-11" href="https://app.midpage.ai/document/sundry-goods-wares--merchandises-v-united-states-85637?utm_source=webapp" opinion_id="85637">2 Peters 358 ; Browning v. The State, 30 Miss. 656 ; Garth v. Howard, 1 Moore & Scott 628 ; State v. Simons, 4 Strob. (Law.) 266 ; Clanson v. The State, 14 Ohio State Rep. 234.
Applying the rules of law, as thus expressed, to the present case, it is apparent that the declarations of Jennotte were not made during the pendency of the criminal enterprise, nor in furtherance of the common design.
The offences, both of the larceny and the reception of the stolen money, were entirely consummated two weeks before the statements were made by Jennette to Mrs. Haines ; they were made in the way and form of a narrative, a mere relation and account of past transactions ; and, so far from being made in order to carry out and perfect any object connected with-the crime, they were conversations held with one who was not an associate, nor in any way connected with thp matter, and who had no share or interest in the fruits of the crime. '•>„
We think it would not be advisable to open the door for the admission of such declarations, beyond the limits of the principle established by the .adjudged cases. Such narrative accounts are, in law, not incidental even to the main occurrence; they are unsanctioned by those tests of truth which are imposed by the obligations of an oath, the process of cross-examination and the restraint arising from the personal presence of the accused; they are liable to suspicion from the possible carelessness, misapprehension and imperfect recollection of the hearer; and, therefore, the admission of such evidence is unwarranted by sound principle and would be dangerous in practice.
The verdict must be set aside and
A new trial granted.