Fitzgerald v. State

• Citation: 14 Mo. 413
• Parties: FITZGERALD ET AL. v. THE STATE.
• Decision Date: 31 March 1851
• Court: United States State Supreme Court of Missouri

14 Mo. 413

FITZGERALD ET AL.

v.THE STATE.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

WRIGHT & SHREVE, for Plaintiff. I. The attention of the court is directed to the evidence in this case, and we think we may safely say, so far as some of the defendants are concerned, that there is not sufficient evidence to sustain the indictment, and that the jury had utterly failed to distinguish in the application of the testimony. The trial of this cause took place on the 28th of January, 1850. On the 13th of January, 1850, a motion for a severance was filed in writing by two of the defendants, Thomas and Ward. This motion was overruled by the court. The defendants insist that they should have been allowed to sever. Though it is discretionary with the court to allow separate trials to persons jointly impleaded, yet this court will see that the discretion vested in the lower court is soundly exercised; and in all felonies it is a right. Rev. Stat. Mo. § 23, p. 881. II. Although no motion in arrest was made after the verdict in the case, the court is requested to look into the indictment. The Supreme Court decided in the case of Hamuel v. The State, 5 Mo. R. 260, that they would look into the validity of an indictment whether motion in arrest was made or not. The indictment in this case, by its very terms, alleged a substantive and distinct offense to have been committed. It is, therefore, no conspiracy to do the thing charged, but the offense is actually perpetrated; and consequently the attempt is merged in the commission. See Wharton's Cr. Law, 489. When even the conspiracy is consummated, and the offense done is greater than the conspiracy, the lesser is merged in the greater offense. Conspiracy is but a misdemeanor, but felony when perpetrated-- and so punished. III. A conspiracy must be established aliunde, before the declarations of defendants can be introduced by the State, at least before the declarations of one defendant can bind his co-defendants, who are not present. See Wharton's Cr. Law, 188, 492-3-5; 2 Stark. 26, 233-5. The court in this case permitted the prosecutor to give in evidence conversations with one of the defendants, Fitzgerald, and refused to instruct the jury that these conversations did not apply to the other defendants, unless a common desgn to cheat was first made out. This common design and confederation, we know can be gathered from the acts and sayings of the parties, but the declarations of one cannot be used against the others until this is done. IV. Where no evidence, or but slight evidence, is offered by the State against one of several defendants jointly impleaded, that defendant is entitled to the opinion or verdict of the jury as to his case, even though the avowed object be to use his testimony in behalf of other defendants. Rucker v. Eddings, 7 Mo. R. 115; Brown v. Burrus, 8 Mo. R. 26; Garrett v. The State, 6 Mo. R. 1. The evidence does not involve Ward (one of the defendants), who asked that his case might be passed upon. He was acquitted by the jury afterwards. His name is not mentioned in the case in connection with the transaction. The prosecutor was only introduced to him as a Quaker's son from Philadelphia--fact not traversed, and implying, certainly, no discredit in itself. V. The last point raised in this case is the error of the court below in giving improper, and refusing proper, instructions. The court will observe that some of the instructions asked for by the defendants, were upon the same points upon which the court gave instructions upon its own motion, but the language of these instructions of the court differed materially from those asked by the defendants, and said instructions do not supersede the propriety of those asked for by the defendants. The points already presented in the case, and the record itself, it is conceived, show the propriety, legality and application of all the instructions asked for by the defendants, not one of which was given by the court--or substantially given by the court ex mero motu. All of which is respectfully submitted.

LACKLAND, for The State. I. The court committed no error in refusing the separate trial asked for by the appellants. It is a matter of discretion with the court, made so expressly by statute. Rev. Stat. 881, § 23. There was no reason for it, and unless the contrary is shown, which is not in this case, the court will presume that the vested discretion was soundly exercised. No authority is supposed necessary. II. The court was right in not excluding the declarations of one defendant until combination and conspiracy by all was shown aliunde. The court could not be called on in a case of conspiracy to measure the application of each sentence as it was uttered by a witness. III. There was no error in allowing the State to read from the preliminary notices which had before been put in evidence by the appellees. The bill of exceptions does not show that anything hurtful to the defendant was read. That should be shown before the court will so determine. It must have a basis for its judgment, which the record in this case does not give. IV. The instructions for the State were all law and properly given, and those asked by the appellants and refused were not law, and were, therefore, properly refused. V. There was some evidence against the defendant, Ward. The court should only allow the jury to pass on one defendant, when there is no evidence against him.

BIRCH, J.

The defendants were indicted for a conspiracy and confederation to cheat and defraud one Simpson of five half pipes of brandy--upon the trial of which, one of them was acquitted and the other four convicted. In the course of Simpson's examination as a witness for the State, the court was verbally requested to instruct the jury that the declarations of Fitzgerald (which the witness was detailing) were not evidence against the other defendants, who were not present at the time, to which the State replied that it would not be claimed as evidence unless a combination was shown. “The testimony was admitted” by the court, on the ground that if no concert and combination was shown among the defendants, the...