Card v. The State

• Decision Date: 23 December 1886
• Docket Number: 13,405
• Citation: 9 N.E. 591,109 Ind. 415
• Parties: Card v. The State
• Court: Indiana Supreme Court

9 N.E. 591

109 Ind. 415

Card v. The State

No. 13,405

Supreme Court of Indiana

December 23, 1886

Petition for a Rehearing Overruled Feb. 23, 1887.

From the Kosciusko Circuit Court.

The judgment is affirmed, with costs.

E Haymond and L. W. Royse, for appellant.

L. T Michener, Attorney General, and W. B. Hord, for the State.

OPINION

Howk J.

In this case the indictment charged that appellant and Theodore W. Strain, "on the 9th day of September, 1885, at the county of Kosciusko, in the State of Indiana, did then and there feloniously, falsely and fraudulently make, forge and counterfeit a certain promissory note, purporting to have been made and executed by one John F. Fisher, for the payment of money to one John Hall, which said false, forged and counterfeit promissory note is of the following tenor, to wit:" (Setting out a copy of such note), "with intent then and there and thereby, feloniously, falsely and fraudulently to prejudice, damage and defraud the said John F. Fisher."

Appellant was awarded a separate trial; and upon his arraignment and plea of not guilty, as charged in the indictment, the issues joined were tried by a jury, and a verdict was returned finding him guilty, as charged, and assessing his punishment at imprisonment in the State's prison for ten years, and a fine in the sum of ten dollars. Over his motion for a new trial, the court rendered judgment against him upon and in accordance with the verdict.

The only error of which appellant's counsel complain in their brief of this cause, is the alleged error of the court below in overruling the motion for a new trial. In discussing this error counsel say: "We think that the court erred, during the trial, in permitting witnesses for the State to detail conversations had with Woodson S. Marshall and others, not in the presence of appellant, and desire to call the attention of the court to the fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh written reasons for a new trial. The argument of one will, we think, be applicable to all." We will consider so many of these causes for a new trial as appellant's counsel have discussed, in the order they have pursued in argument. They first direct our attention to the fifth reason assigned for a new trial, as follows: "The court erred in permitting the State, over the objections of defendant, to put in evidence a letter from Woodson S. Marshall to W. W. Mikels, dated January 21st, 1886." The letter referred to, in this cause for a new trial, reads as follows:

"Mr. Mikels--I dropped you a postal to-day. If Mr. S. wants the notes, I think he can have them, as Mr. H. is still here. If you come up in the morning, say nothing to any one until you see me. If you see Cook, and he asks you where you got the Hall notes, say from Hall, and that he is a Chicago man. But don't say you have any notes--that you returned them to Chicago. Will talk over matters if you come up. We may want to do some fine figuring. Burn this. If S. made a deed, bring it along.

"Yours truly,

(Signed) W. S. Marshall."

"8 p. m., 1, 21, '86.

It is shown by the record, that appellant objected to the admission of this letter in evidence, "for the reason that the evidence is irrelevant and immaterial, and does not tend to prove any of the allegations in the indictment, and that it is a written declaration made by Woodson S. Marshall, in the absence of defendant and without his knowledge or consent, and was hearsay." The court overruled these objections and admitted the letter in evidence, and appellant excepted.

The letter of Marshall was manifestly admitted in evidence by the trial court, upon the ground that it had been shown to the satisfaction of the court, by other evidence appearing in the record, that a criminal conspiracy had been entered into, by and between appellant and his co-defendant, Strain, and Marshall, the object and purpose of which conspiracy were the forgery of promissory notes, in the names of certain responsible persons, and the sale and utterance of such forged and counterfeit notes. There was evidence introduced which tended to prove the formation and existence of such a conspiracy by and between the parties named, for the purposes mentioned, and the parts which each of the conspirators was to perform in the accomplishment or furtherance of the criminal design; and that in pursuance of such conspiracy, and while attempting to perform the part assigned him therein, by selling and uttering certain of the counterfeit promissory notes forged by such conspirators, Marshall made certain verbal and written declarations, and, amongst others, the one referred to in the fifth cause for a new trial and heretofore quoted, of and concerning such notes and his efforts to sell and utter the same, and about John Hall, the payee named therein. It is manifest that the trial court regarded such evidence as sufficient to establish prima facie the fact of such a conspiracy, by and between appellant, Strain and Marshall, for the object and purpose aforesaid. We can not say that the trial court erred in its view of the effect of such evidence; for this question is one peculiarly for the consideration and decision of the learned court presiding at the trial.

Upon this subject, Mr. Greenleaf has said: "A foundation must first be laid by proof sufficient in the opinion of the judge to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all; and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by others and a party to every act which may afterwards be done by any of the others in furtherance of such common design." 1 Greenl. Ev., section 111. The doctrine here declared has been approved and acted upon in many of our decided cases. Williams v. State, 47 Ind. 568; Jones v. State, 64 Ind. 473; Walton v. State, 88 Ind. 9; Archer v. State, 106 Ind. 426, 7 N.E. 225.

But appellant's counsel say: "Admitting for the sake of the argument, that the conspiracy was established, still the court erred in admitting the declarations and letter. We understand the rule to be, as laid down...