State v. McDaniel
140 P. 993
Or.
1914
Check Treatment

*235Opinion by

Mr. Chief Justice McBride.

1-3. The court erred in refusing to restrict the evidence of the declarations of Mrs. Poch made after the killing and not in the hearing of her codefendant. Declarations of an alleged conspirator made after the termination of the conspiracy are not admissible against a co-conspirator: 8 Cyc. 680 B, and cases there cited. A conspiracy is in the nature of a criminal partnership to do an unlawful act, and as in cases of ordinary partnerships each partner is bound by the acts and declarations of his fellow partners made or done in furtherance of the common object; so in conspiracy each conspirator is bound by the acts, declarations and admissions made by a fellow conspirator before the termination of the conspiracy, but, when the unlawful object has been accomplished, the conspiracy is at an end—the criminal partnership is dissolved— and no member of it can bind the others by his own acts, admissions, or declarations. The court should have expressly directed the jury that, while the evidence in question might be considered as against Mrs. Poch, it could not be considered as tending to prove anything against defendant McDaniel. While we are of the opinion that the court had a right to make the nunc pro tunc order in the absence of the defendant, it is a practice not to be commended. Neither the nunc pro tunc order nor the record of conviction or judgment shows that the defendant was present when the verdict was received. This was a grave irregularity, to say the least. The defendant had a constitutional right to be present at every stage of the proceedings, and the record should affirmatively show that he was present: 12 Cyc. 686, and cases there cited; Bishop, New Criminal Procedure, § 1001; State v. Walton, 50 Or. 142 (91 Pac. 490, 13 L. R. A. (N. S.) 811); People v. Jung Qung Sing, 70 Cal. 469 (11 Pac. 755). While *236we are not prepared to say, in the absence of a statute requiring the presence of a defendant to be noted, that a failure to record the fact of his presence would render the trial nugatory, yet the practice of doing so has been so nearly universal and immemorial that it is better not to deviate from it.

Other objections are urged, but we deem them without merit.

The admission of the declarations of Mrs. Poch without limitation of their effect was so prejudicial to defendant that it necessitates a reversal of this case.

The judgment will therefore be reversed and a new trial granted. Reversed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.