Heine v. Commonwealth
| Decision Date | 06 October 1879 |
| Citation | 91 Pa. 145 |
| Parties | Heine <I>versus</I> Commonwealth. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. WOODWARD, J., absent
Error to the Court of Quarter Sessions of Tioga county: Of May Term 1878, No. 36.
A. J. Herr, C. H. Seymour and J. M. Weistling, for plaintiff in error.—The indictment in the most general terms charges the defendant alone with conspiring with Weill to assign and transfer goods and merchandise with intent to cheat and defraud defendant's creditors, without stating whose, or what goods, or where, or when they were to be transferred and assigned, and erroneously charges a simple, naked conspiracy by one with another person known, but not joined as defendant, nor any excuse given for such non-joinder; nor statement that anything was ever done in pursuance of such conspiracy to injure or affect any one.
There cannot be a conviction for a confederation or agreement to do a thing, if neither party ever did anything in pursuance of the agreement, and no one was injured thereby. Could there be any legal conviction? And if not, is there any sufficient charge of an offence in the indictment in this case? And should not the court have so charged the jury: Commonwealth v. Byerly, 2 Brewster 568; Regina v. Parker, 3 Ad. & E. 741; Rex v. King, 7 Ad. & E. 782; Hartman v. Commonwealth, 5 Barr 60; White v. The Queen, 13 Cox Cr. Cas. 318; 3 Russell on Crimes 152; Whart. Crim. Law, vol. 3, note to sect. 2305.
The declarations of Weill were not evidence for any purpose. Not against Weill, because he was not being tried, and not against defendant, had they been made at the proper time, or during the time of the alleged conspiracy, as such declarations would not be evidence until the conspiracy was proved.
Such declarations can never be evidence against anybody, except the one who makes them: 1 Greenl. on Ev. 157; 3 Id. 101; 1 Whart. Crim. Law, 5th ed., sects. 702-6; State v. Dean, 13 Ired. 63; State v. Thibeau, 30 Vern. 100; 2 Bishop Crim. Law, 192, sect. 191; Benford v. Sanner, 4 Wright 10; 2 Whart. Crim. Law 1205; Duncan v. State, 64 Mo. 262; Craig v. Craig, 5 Rawle 91; United States v. Craig, 4 W. C. C. R. 729; Tompkins v. Saltmarsh, 14 S. & R. 280-1.
H. Sherwood, M. F. Elliott and H. B. Packer, District-Attorney, for Commonwealth.—Every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the Act of Assembly prohibiting the crime: sect. 12 of Cr. Proc., Purd. Dig., p. 377; Com. v. Eberle et al., 3 S. & R. 9; Collins v. Com., 3 Id. 220; Com. v. Gillespie, 7 Id. 479; Com. v. McKisson, 8 Id. 420; Carey v. Com., 4 Barr 210; Rhoads v. Com., 3 Harris 277; Hazen v. Com., 11 Id. 355; Twitchell et al. v. Com., 9 Barr 211.
In conspiracy the thing intended need not be accomplished; but the bare combination constitutes the crime: 2 Bish. Cr. Law, s. 192. The indictment must always charge the crime against more persons than one, because one cannot conspire alone, yet there need not necessarily be more than a single person made defendant.
In a charge of conspiracy, it seems no more necessary to specify names of the defendant's coadjutors than in an indictment for an assault and battery, to name others besides the accused who were concerned in the trespass, if the fact were really so: 2 Bishop's Crim. Procedure, sect. 225; People v. Mather, 4 Wendell 265-6.
The offer to show the declarations of Weill, was made to show his knowledge of the purpose Heine had in view, in proposing to transfer his goods to Weill, and if the purpose was a criminal one, that he assented to it, and not for the purpose of having any bearing upon the question of Heine's guilty intent.
We have no doubt that the declarations of Weill as detailed by Edward C. Holmes and others, made, as they appear to have been, after the relations between himself and Heine had been dissolved, were improperly admitted. The declarations of a conspirator are, of course, always evidence against himself, and they are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions and as such may properly be admitted; but when not made during the progress of the fraudulent scheme but afterwards, and, as in this case, in a mere rehearsal to a third party of what has previously been done, they are not evidence: 3 Chit. Crim. Law 1143.
Furthermore, the learned judge of the court below committed an error in saying to the jury: "If a man is guilty, his previous good character has nothing to do with the case; but if you have doubt as to his...
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...justly produce an acquittal." Cited Whart. Crim. Ev. [9 Ed.] sec. 67. This view of the subject is well illustrated and expressed in Heine v. Com., 91 Pa. 145, where Gordon, J., "Furthermore, the learned judge of the court below committed an error in saying to the jury: 'If a man is guilty, ......
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...with particular reference to the character evidence introduced. This instruction is taken verbatim from a Pennsylvania case, Heine v. Commonwealth, 91 Pa. 145. In case the court had instructed the jury that character evidence was of no consequence except where the issue was doubtful when it......
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...error where * * * there is no evidence that any other person than those named in the indictment was in the conspiracy * *." Heine v. Com., 91 Pa. 145, at page 149, "* * * if it sufficiently appears, from the record, that he was a confederate", and see 2 Wharton, Criminal Law, 12th Ed., § 16......
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