State v. Thibeau, 30 Vt. 100

State v. Thibeau

30 Vt. 100 | Vt. | 1858

The opinion of the court was delivered by

Aldis, J.

It has been decided in State v. Nixon, 18 Vt. 74, and in State v. Gilbert, 13 Vt. 647, that the only questions which can be raised on a motion in arrest of judgment, are those which relate to the sufficiency of the indictment; and that on the hearing of such question, defects in the caption, or even the omission of the caption can not be noticed. . The motion in arrest was therefore properly overruled.

The volunteer statement of Darling, as to the admissions of Dorus, was collateral to the issue, and therefore the offer to disprove the statement of Darling was properly rejected. Whether, if the counsel for the defendant had requested the court to charge the jury that such volunteer testimony of Darling was improperly introduced, and ought not to be weighed by them — and the court had refused to comply with such request — that would not have been error in the court, it is not necessary for us to decide. It does not appear that any such request was made; on the contrary the case shows that the court gave the further instructions to the jury that the case called for, to which there was no excejffion.

The important question that arises in this case, is as to the admissibility of the declarations of John and Henry Robert to -inculpate the respondent Thibeau.

The case states that these declarations were made seven or eight days after the offense was committed; that they were made by John and Henry Robert, separately and apart from one another, and that the respondent was not present when they were made. These declarations implicated Thibeau in the commission of the *105offense. It also appears that there was testimony tending to show that the respondent, and the witnesses who made the declarations, acted in concert in committing the offense.

The court charged, that if the jury found a concert or connection between them, relative to the commission of the offense with which they stood charged, then the subsequent admissions of one of the respondents, detailing the particular parts which he and his associates took in the commission of the offense, would be evidence not only against the respondent who made the admissions, but also against the associate whom the declarations connected with the commission of the offense.

The general rule is, that the declarations of one person are not evidence against another. But when several persons are proved to have combined together to do an illegal act, or to commit a crime, any act of any one of them, done in pursuance of the original concerted plan, and with reference to and in furtherance of the common ' object, is evidence against the others. This is upon the ground that the act is the act of the whole party, or, to use the language of Mr. Starkie, that they are partners for a bad purpose, and so mutually responsible. Their declarations stand upon the same ground as their acts. To be evidence against the others they must be a part of the res gesta, and must be made in contemplation of, or in furtherance of the common design.

If the declarations are merely narrative — the relation of a past transaction, and not one in furtherance of the illegal act — they are not evidence against others who Were not present when they were made ; for then the common purpose, which ties them all together and makes the act or declaration of one the act or declaration of all, is wanting. The story, then, receives no credit, and has no force from the connection of the others with it, and from its own connection with the common design, but depends wholly on the credit of the narrator, and becomes mere hearsay.

These principles are laid down by all the writers upon evidence as well settled ; and the distinctions appear to have been carefully observed in criminal trials, when the questions have arisen. In civil cases the rule has not always been stated with its proper limitations.

*106The ruling of GarboW, J., at nisi prius in Wright v. Court, 2 C. & P. 232, was right as to the admissibility of the testimony. The counsel in that case claimed that the declarations were inadmissible because they might affect others, instead of admitting them and asking the court to limit their application solely to the party who made them. The court admitted the testimony. The opinion so far as it relates to the admissibility of the testimony is clearly correct. The intimation at the close, that “ persons may always avoid the declarations of the malice of their co-defendants operating against them by taking care not to be concerned in doing things they can not justify,” was not necessary as a decision upon the point raised; and, so far as it may be supposed to admit that such declarations as were there proved should operate against other defendants, it is at least of doubtful authority. The remark of Lord Ellenborough, in Rex v. Hardwick, 11 East 585, as to the declarations of co-trespassers, does not appear to have been applicable to the declarations proven. It was made in reply to the argument and illustration of counsel. The language used is too general to serve as a definition of the rule, and is alluded to in Phillips on Evidence, as expressed without proper limitations.

In Reitenbach v. Reitenbach, 1 Rawle 362, the declarations were made before the bond, which was to be the means of carrying the fraudulent object into effect, was given and were made in furtherance of the scheme. So, too, in Wilbur v. Strickland, 1 Rawle 458, after proving the fraudulent combination, the declaration of the party was, that he was going to put the property into the hands of his friend Strickland, to keep it out of the reach of creditors. In Gibbs v. Neeley, 7 Watts 306, the declai-ations are not set forth with sufficient particularity as to time and attending circumstances, to enable one to decide, with certainty, whether made or not in furtherance of the illegal object; but it would seem that they were made in connection with and to carry out the fraudulent purpose. In Rogers v. Hall, 4 Watts 360, the acts of the attorney in receiving the goods would seem to have been a part of the res gesta of the fraudulent transaction and properly admissible.

We have not been able to find a report of any criminal case in which the distinction as to the admissibility of declarations, whether *107merely narrative or made in connection with and in furtherance of the common design, has not been observed; and as the diligent research of the state’s attorney has not been more successful, we may well conclude that there is an entire unanimity in the authorities upon this subject, so far, at least, as the rule applies to criminal trials.

In applying the rule of the law to this case, it seems clear to us that the declarations of John and Henry Robert were not made upon any concert with their associates, or in furtherance of the common design. The offense was burglary, itself not a continuing offense. The statements were made seven or eight days after the act of burglary was done; they were made in the way of narrative, the relation of a past occurrence, and so far from being made to carry out any object connected with the crime, they were convei\ sations had with one whc was not an associate, nor was expected to share in the fruits of the crime, but whose professed character as a rogue and criminal seemed to them, to be a sufficient security for secrecy.

That the stolen property still remained in the possession of the associates does not make the declarations admissible, for they do not seem to have been made with reference to any disposition of the stolen property, or upon any concert or plan for concealing the same. Their only connection with the concealment of the property, was in the way of -stating what had been done and where the stolen goods had been concealed at the time of the burglary.

We think, therefore, that the declarations ought not to have been received as evidence against Thibeau, and that the decision of the county court in admitting the declarations of John and Henry Robert to inculpate Thibeau, was erroneous.

Judgment of county court is reversed, case remanded and a new trial granted.