Hauger v. United States

• Decision Date: 13 July 1909
• Docket Number: 828.
• Citation: 173 F. 54
• Parties: HAUGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

173 F. 54

HAUGER v. UNITED STATES.

No. 828.

United States Court of Appeals, Fourth Circuit.

July 13, 1909

Brown &amp Blizzard and A. G. Hughes, for plaintiff in error.

Reese Blizzard, U.S. Atty., and E. M. Showalter, Asst. U.S. Atty.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

John M Hauger, plaintiff in error, defendant below (and who will hereafter be called the defendant) was tried by jury and convicted in the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg, at January term, 1908, on an indictment charging him with making counterfeit United States coin. The indictment contained three counts, but the defendant was convicted only on the first count, which reads as follows:

'The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid, of the court aforesaid, on their oath, present that John M. Hauger, heretofore, to wit, on the . . . day of October, in the year 1905, in the said district, and within the jurisdiction of said court unlawfully and feloniously, knowingly did falsely make and forge a large number, to wit, one hundred and ten coins in the resemblance and similitude of the true and genuine coin, theretofore coined at the mint of the said United States, called a dollar, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The judgment of the court was that the defendant be imprisoned at hard labor for a year and a day, and that he pay a fine of $110 and the cost of the prosecution. The defendant sued out a writ of error from this court, and the case is before us upon exceptions duly taken in the course of the trial and allowed by the court, and assignment of error based thereon. The bills of exception are 11 in number, but we do not deem it necessary to pass upon all of them in order to dispose of the case here. The first exception is based upon the admission of the testimony of John E. Washer, a witness offered in behalf of the United States, who gave in detail an alleged confession made to witness by one George Menear in the city jail of Pittsburg, Pa., on the 31st day of January, 1906; the said George Menear being at the time confined in the said jail under arrest on the charge of passing counterfeit money. Washer testified that Menear's confession to him was as follows:

'That his name was George H. Menear. That he lived at Terra Alto, Preston county. W.Va. That he was released from the penitentiary of Western Pennsylvania in the fall of 1905, and returned to Preston county, W. Va., soon after being discharged. That he went to the home of John M. Hauger, with whom he had been formerly acquainted and who was then living on what is known as the White Farm, near Norinth, Preston county, along about the 1st of October, 1905, and took supper. He and defendant got in his buggy and drove to Hutton Switch, a distance of one-half to three-quarters of a mile from the residence of the defendant, and that on that occasion they entered into an agreement or conspiracy to make and pass counterfeit coin. That soon after this visit the defendant, John M. Hauger, gave to the said Menear ten dollars ($10) to go to Pittsburg and buy material for the purpose of making counterfeit coin, and that he (Menear) purchased said materials, consisting of plaster paris, metal, etc., and returned to the defendant John M. Hauger's home, where he and the defendant, Hauger, attempted to make counterfeit coins, at first meeting with poor success, but that they continued to experiment with the molds and material, and afterwards manufactured one hundred and ten (110) counterfeit silver dollars. That the said George Menear further said that the defendant, John M. Hauger, went to Oakland, Md., in the fall of 1905, and purchased from one John Davis a small portion of lead to be used in the making of said counterfeit coins, and also a small pair of scales, and that at the time said lead and scales were purchased the defendant, John M. Hauger, offered in payment of same to the said John Davis a silver dollar. That said Davis questioned the dollar, whereupon Hauger took it back, and Hauger told him about the matter when he came home, and refused to try to pass any more. That he, George Menear, had taken the counterfeit money so made and had gone to various towns and cities, among other, Rowlesburg, W. Va., Clarksburg, W. Va., Fairmont, W. Va., and Martinsburg, W. Va., where he had passed the said counterfeit coin, and that he had given to the defendant, Hauger, $40 or $45 of the profits arising from the making and passing of said counterfeit coin. That George Menear further said that on the same day that the defendant purchased the lead and scales from John Davis as aforesaid, he, the defendant, drew out of the bank $25, and that there were with it a number of silver dollars, 10 or 12 silver dollars. That George Menear further stated to the said John E. Washer that the molds in which the said counterfeit coins were made in the upstairs of the house in which the defendant, Hauger, lived, and that he and the said defendant, Hauger, made said molds during the daytime, and that the counterfeit coins so manufactured were made downstairs in the kitchen at night, and that the said George Menear further states that on one occasion while so manufacturing said counterfeit coins in the kitchen that he and the said defendant Hauger killed a rat behind the wall paper on the kitchen wall by sticking a knife through the paper, and into the rat, and that they threw the rat out of the kitchen window. That the said Menear still further stated to said Washer that the molds in which the said counterfeit coins were so made were buried by himself and the defendant Hauger on the White Farm back of and near to the house in which the said Hauger lived at the time said coins were made on the bank of a small stream and near a big rock, and the said Menear designated by a plat or diagram the location where said molds were buried and could be found. He, the said Menear, further stated to the said Washer, so he says, that the ladle used in the pouring of the metal in manufacturing said coins was in the defendant's house, and that a small bottle of chloride of silver was also left in the defendant's possession at the White Farm.'

The defendant's counsel objected to the admission of this testimony, was overruled by the court, and duly excepted. Primarily the court seems to have admitted this statement of Menear on the ground that it was the declaration of a co-conspirator, for the court charged the jury:

'That the jury is instructed that, if they believe from the evidence that the defendant was an accomplice or co-conspirator with the witness George Menear for the making or passing of counterfeit coin, that any statement or confession made by Menear while conspiracy between him and defendant existed is evidence against the defendant, notwithstanding the fact that the witness Menear may not be allowed to testify as a witness on the trial.'

We take it that the last clause of this instruction to the jury in which it is intimated by the court that Menear may not be allowed to testify as a witness on the trial is based upon the fact that Menear had been convicted of counterfeiting and had served a term in the penitentiary, and was, therefore, disqualified to be a witness.

It is not necessary, however, to discuss this proposition. The point which we shall consider is whether, under the circumstances, the alleged confession of Menear to Washer was admissible as the declarations of a co-conspirator. It is a well-settled principle of evidence that in a trial on an indictment for conspiracy after the unlawful agreement has been shown the acts and declarations of co-conspirators are admissible as a part of the res gestae. By the act of conspiring together the conspirators have jointly assumed to themselves as a body the attribute of individuality, so far as regards the prosecution of the common design; thus rendering whatever is said or done by any one in furtherance of that design a part of the res gestae, and therefore the act of all. For these reasons the conspiracy must be proved prima facie or such acts, and declarations are inadmissible. 3 Greenleaf on Evidence (16th Ed.) Sec. 94, note 1. In this case there was an entire absence of evidence to prove the unlawful combination between Menear and the defendant. It is true that Menear stated to Washer, so Washer testified, that about the 1st of October, 1905, he, Menear, and the defendant entered into an agreement or conspiracy to make and pass counterfeit coin. But as to that fact the declaration of Menear was only hearsay. There is no rule which renders the declarations of an alleged co-conspirator, given second handed, admissible to prove the existence of the conspiracy. Such declarations are made competent only after the conspiracy has been shown to exist. In this view the alleged declarations of Menear were...