Osborne v. State

1. Criminal Law. Conspirators. Evidence. Credibility of witnesses. Completion of offense. Code 1906, section 1026. The question of the credibility of a witness is one which belongs exclusively to the jury. 2. Accomplice. Credibility. While the testimony of an accomplice should be received and weighed with great distrust and jealously by tlie jury, it is still the province of the jury to determine what credit to give to the testimony of an accomplice from his manner and general appearance upon the stand and all other surrounding and attending circumstances and it is the jury’s privilege, if they see proper, to believe him without corroboration. 3. Admission oe Conspirators. Admissibility. Where a conspiracy has been established, the admissions of one or more of the conspirators are admissible to affect their associates only when made during the progress or in the prosecution of the unlawful design about which they have conspired; and hence if made after its completion, or abandonment, they are inadmissible. 4. Same. Acts or declarations of conspirators are not always excluded because they were done or made after' the commission of the crime. If for any reason as for escape or concealment, division of profits, or realization of benefits, the common purpose continued, declarations in furtherance thereof are admissible, although the crime which was the object of the conspiracy has been consummated. Where a defendant is charged together with several co-conspirators with burning a stock of goods with intent to defraud an insurance company, a plea of guilty by his co-conspirators to an indictment charging them with burning the house in which the goods were located at the time of the burning is admissible to show that the fire was of incendiary origin. But this evidence was not competent for the purpose of proving that the intent was to defraud the insurance company, nor was it competent to show that defendant had any guilty connection whatever with the other conspirators in the unlawful burning. ■5. Code 1906, Section 1026. While it is true that under Code 1906, section 1026, an accessory can he tried and punished as a principal, before or after the principal has been tried, nevertheless, where several are indicted jointly for a felony, if the evidence shows that one or more were accessories before the fact, though charged in the indictment as principals, it is absolutely necessary to prove the party guilty who actually committed the felony before proof can be secured of the guilt of the accessories before the fact, although they are charged in the indictment as principals. *6. Criminal Conspiracy. Evidence. Before the declarations of one party can be received in evidence against another in a criminal prosecution there must be proof of a conspiracy aliunde. But a conspiracy can be proven like other controverted facts, by the acts of the parties or by circumstances, as well as their agreement.

Appeal from the circuit court of Tallahatchie county. Hon. N. A. Taylor, Judge. C. W. Osborne was convicted of burning a stock of goods with intent to defraud an insurance company, and appeals. The facts are fully stated in the opinion of the court. The rule with reference to the admissibility of statements and admissions of one conspirator against his fellows is, that after prima facie proof of the existence of' a conspiracy is made, that such statements or admissions, may be heard which were made before the crime was complete. Such statements and admissions made afterward are always rejected by the court. Nothing said or done by one conspirator against his fellow, not in his. presence, subsequent to the execution of the common purpose, has been allowed by any of the superior courts, to go to the jury. This rule is very satisfactorily stated in 12 Cyc., 435 et seq., especially in par. 2, on page 439,. but the courts of this state have so often, so clearly and so distinctly announced and enforced this rulé that we-shall confine ourselves mainly to reference to decisions of this court. In the Browning case, 31 Miss. 657, a case like the one-at bar, resting wholly upon circumstantial evidence, the court says: “The offense charged, if committed at all, was unseen by all save the parties engaged in its perpetration. The whole transaction was shrouded in secrecy. The very fact of the homicide, as well as the question, who were-the perpetrators of the deed, depended entirely upon indirect or circumstantial evidence. The charge, as laid in the indictment, pre-supposes the co-operation of at least two persons in the commission of the offensé. It may hence well be conceded that peculiar and urgent circumstances existed in the cause, which authorized the application of the exception of the rule above stated, if any combination of circumstances could authorize a departure from the prescribed mode. But it should ever be-borne in mind, that no man can be asserted to be legally guilty of an offense unless his guilt shall have been established according to the forms and principles of law; and-that in no case should a disregard of either the law itself or its established forms be tolerated, from any considerations of difficulty in the conviction of offenders, or from the supposed manifest guilt of the accused. ’ ’ This was said with reference to the admission of the acts and declarations of an alleged conspirator after the consummation of the conspiracy. This reasoning in the Browning case has been followed by this court without variation ever since it was announced. It is quoted verbatim in the Foster case, 92 -Miss. 257. In the Lynes case, 36 Miss. 617, it was held error to refuse the following instructions: No. 4. “That the confession of one accomplice or conspirator is no evidence against another unless made before the completion of the original design; and if the jury believe that the confession of Hightower was made after the killing of Landram, they are but a relation of past occurrences, after the purpose of the conspiracy had been accomplished, and are not evidence against the defendants on trial.” No. 6. “The actions and declarations of one of several conspirators, the conspiracy being first established, are evidence against the others, but such acts and declarations must have been performed and made during the pendency of the criminal enterprise, and before its completion or abandonment, or else, being no part of the res gestae, but the mere relation of a past transaction, and cannot be received by the jury as evidence to charge the other confederates.” In the Garard case, 50 Miss. 147, a like instruction was refused, which was held to be error by this court.- In the Simmons case, 61 Miss. 248, in which the defendant was charged with the murder of Gen. Tucker, the state was allowed to prove that Dick Shaw stated after the killing,.that if he knew where the defendant was, he would write to him, and that his father would let him have a horse, if he needed one. Other conversations of Shaw after the killing and in the absence of the defendant were given in evidence, all of which the court held to be error, though ample proof of the existence of a. conspiracy was made. See, also, Gillam v. State, 62 Miss. 547; Wilson v. State, -71 Miss. 880; Brown v. State, 72 Miss. 990; Foster v. State, 92 Miss. 257. The instruction refused in the Lynes case, supra, were almost identical with instruction No. 3, refused to the appellant. The same question presented by the instruction was also presented by objection to the testimony of the witness when delivered and by motion to exclude. The trial court was asked in instruction No. 5, which was refused, to advise the jury that the testimony of the witness, Joe Williams, should be scrutinized with great care and caution on account of his connection with the crime charged against him, and that the jury should not only consider the said witness ’ connection with the crime charged, but also contradictory statements admitted to have been made by him. . Examination of the decisions of this court in the Lynes case, 36 Miss. 617; the Green case, 55 Miss. 455; the Wilson case, 71 Miss. 880; and the Brown case, 72 Miss. 990, make it clear that it is a defendant’s right to have the jury so instructed. It is not merely how a jury may regard the testimony of an accomplice, but to advise them that such testimony is viewed with suspicion and distrust by the law. It is a legal question, a distrust or suspicion which the law entertains that the defendant is entitled to have the jury instructed upon. It is true that the court may determine as to the language or wording of an instruction intended to express the law’s distrust or suspicion of such testimony, but it cannot refuse the defendant’s request to advise the jury upon so important matter. See especially the Green case, supra-, instruction No. 2 asked by the defendant and refused by the court was in these words: “The court instructs the jury that in determining your verdict you will not consider any evidence of the conviction of Joe Osborne or R. E. Tannery.” The indictment and the .conviction of both Joe Osborn and R. E. Tannery were introduced in evidence over appellant’s objection, and his motion to exclude, after-wards made, was overruled. The indictment was for a separate and distinct offense from that which appellant was on trial. No court, so far as we have been able to ascertain, has ever allowed the state to show on the prosecution of one conspirator, the conviction of his fellow, under the same indictment, but here, we have the record of a trial court allowing the state to introduce the record of the indictment and conviction of the appellant’s co-indictees, for a separate, distinct and different offense under an indictment returned upon a different law. The governing rule with reference to the question raised by the refusal of instruction No. 2 above, is stated in 12 Cyc. 445, as follows: “Where two persons have been jointly indicted for the same offense, but separately tried, a judgment of conviction against one of them is not competent on the trial of the other, in as much as his conviction is no evidence either of joint action, or of the guilt of the accused. The same rule applies where two are separately indicted and tried for the same crime. ’ ’ The admission of the proof of the conviction of Joe Osborne and Tennery not only violates the rule as above announced, but also the rule which prohibits the introduction of admissions of co-conspirators made after the crime is complete. The right of a defendant in a criminal case, which our laws profess so jealously to guard, do not extend so far as to justify the introduction of such records in behalf of a defendant, and how it can be conceived that such records may be introduced by the state in its prosecution, can not be explained. In Nix v. State, 34 S. W. 764, it was held that a statement made by a son, who was a co-conspirator, made after he had walked one hundred yards from the place of the killing, that his father had killed the decedent, wás held not admissible. On this question, see. People v. Bearss, 10 Cal. 68; State v. Fertig, 98 la. 139; Clark v. Com., 14 Bush. (Ky.) 166; People v. Mullins, 5 N. T. App. Div. 172; People v. Kief, 136 N. T. 661; State v. Bowker, 26 Ore. 309; Bell v. State, 33 Tex. Cr. 163; Harper v. State, 11 Tex. App. 1. It is argued that testimony as to statements made by appellant’s co-conspirators after the store had been burned was erroneously admitted. Counsel’s theory is that the acts and admissions of co-conspirators done and made after the conspiracy is formed and before the object of it is consummated are admissible, and that the object of the conspiracy in this case was the burning of the stock of goods and that it was consummated when it was burned. I think counsel are in error. The object of the conspiracy was to defraud the insurance companies, and burning the store and stock of goods was merely a means to that end, When the admissions testified about were made, appellant had never settled with the insurance companies, but was trying to do so. The correspondence between defendant and Dr. Emery extended from the latter part of March to the 27th day of April, the fire having occurred on the night of the 4th of February. The admissions of co-conspirators testified about by witnesses were made long before thiá correspondence. The object of the conspiracy, therefore, had not been accomplished. Moreover, the admissions objected to were made in an attempt to conceal the crime in pursuance of a purpose to enable the conspirators to escape punishment. In 12 Cyc. 438, it is said: “1. Acts and Declarations Before Complete Fulfilment of Purpose.- — Acts or declarations of conspirators are not always excluded because they were done or made after the commission of the crime. If for any reason as for escape or concealment the common purpose continues, declarations in furtherance thereof are admissible, although the crime which was the object of the conspiracy has been consummated. “j. Acts and Declarations before Dividing or Disposing of Proceeds of Crime. — "Where the conspiracy has for its purpose, not only the commission of a crime, biit also a division of the profits, or the realization of the benefits which are the result therefrom, as in conspiracy to commit larceny or embezzlement, the declaration by one conspirator made after the crime, but before the subsequent arrangements are completed, are competent as against his co-conspirators.” It is argued that instruction No. 5, refused defendant, ought to have been given. It is improper to single out a witness by name and practically tell the jury that he is unworthy of belief. Instructions Nos. 10, 4 and 3 granted the defendant, and 5 granted the state, correctly stated the principle which appellant ought to have stated to the jury by said instruction No. 5, which was refused. I«do not think that instruction No. 6 granted the state fairly bears the interpretation put upon it by counsel for appellant. The instructions as a whole correctly announce the law, I think. It is argued that it is error to admit the record of the indictment, plea of guilty, and sentence of Tennery and Joe B. Osborne for burning the storehouse (not the stock of-goods). It was all the same burning. The evidence was perfectly competent. The theory being that these two conspired with appellant to bum the store, but that the actual setting fire to the store was" done by Tennery and Joe B. Osborne, appellant being away on a hunting trip at the time, it was absolutely necessary to prove that Tennery or Joe B. Osborne, or both, did set fire' to the store. Joe Williams was discredited to some extent, and it was not incumbent upon the state to rest upon bis testimony alone to prove this. “That confession of a principal is admissible on the trial of the accessory to evidence the commission of the crime by the principal, seems clear on the present principle, supposing some evidence of the defendant’s cooperation to be.first furnished. But whether the judgment of conviction of the principal is receivable for the same purpose depends on the doctrine of the effect of judgments.” 2 Wigmore on Evidence, sec. 1079; 12 Cyc. 195, and notes; see, also, Givens v. State, 103 Tenn. 648; Howard, v. State, 109 Ga. 137; this is the rule in Mississipp; see Keithler v. State, 10 S. & M. (Miss.) 226; Lynes v. State, 36 Miss. 617. The fact that Tennery and Joe B. Osborne plead guilty to a different indictment charging a different crime cannot affect the admissibility of their pleas of guilty and the records of their conviction. As I have stated, it was all the same fire. Defendant did not admit that the fire was of incendiary origin, did not admit that Joe B. Osborne, Tennery or Williams had anything to do with starting the fire. The state relied upon the testimony of Joe Williams for proof of these facts and defendant made a strenuous effort to break down this testimony by impeaching Williams. The theory of the state was that defendant had procured Osborne and Tennery and Williams or one of them to set fire to the building for the purpose of defrauding the insurance companies. It was necessary therefore, in order to convict this appellant that it should be proved, first, that Joe B. Osborne, Tennery, or Williams set fire to the building; second, that it was done for the purpose of defrauding the insurance compaines. Now, their pleas of guilty and the records of their conviction were competent evidence under the rule stated in the authorities named above, including Mississippi cases, that' the fire was 'of incendiary origin and that Tennery and Joe B. Osborne were' tbe ‘guilty parties. This evidence was not competent for the purpose of proving that the intent was to defraud the insurance companies, nor was it competent as proof that defendant had any guilty connection with Joe B. Osborne, Tenery and Williams in the unlawful enterprise. This cannot avail appellant anything, however, because only a general objection was made to' the admission of this evidence. “A general objection to the admissibility of evidence is-insufficient unless the evidence objected to is palpably inadmissible for any purpose or under any. circumstances.” 12 Cyc. 563. This is the rule in Mississippi. See Lipscomb v. State, 75 Miss. 559. Nowhere in the record does it appear that any specific objection was made to this evidence or that the court was asked anywhere to instruct the jury as to the purpose for which it was admitted or as to the facts which it was competent to prove.