Moore v. Shields

• Decision Date: 13 December 1889
• Docket Number: 13,900
• Citation: 23 N.E. 89,121 Ind. 267
• Parties: Moore et al. v. Shields
• Court: Indiana Supreme Court

23 N.E. 89

121 Ind. 267

Moore et al. v. Shields

No. 13,900

Supreme Court of Indiana

December 13, 1889

From the Orange Circuit Court.

The judgment is affirmed, with costs.

M. F Dunn, G. G. Dunn and W. H. Edwards, for appellants.

G. W Friedley, J. Giles, J. A. Zaring and M. B. Hottel, for appellee.

OPINION

Mitchell, C. J.

This was a suit by Ambrose T. Shields against Milton N. and William T. Moore, to recover a sum of money paid to the defendants by the plaintiff for a township warrant, or note alleged to have been issued without any consideration, and in violation of his official duty, by a township trustee, in Lawrence county, to R. B. Pollard.

The first paragraph of the complaint is an ordinary common count for money had and received by the defendants to the plaintiff's use. It is charged in the second paragraph that the warrant had been issued in pursuance of a conspiracy into which the defendants had entered with Pollard and others, the purpose of which was to procure paper, or warrants, to be issued by township trustees without any consideration, after which they were to be negotiated by the defendants, who were bankers, for the common benefit of the confederates, and that the defendants in pursuance of the conspiracy so formed, sold a warrant so obtained to the plaintiff and obtained from him a large sum of money.

After the testimony had all been heard, the court instructed the jury that there was no evidence tending to prove the conspiracy charged, and admonished them to disregard the second paragraph of the complaint. Before the jury had been thus instructed, evidence had been admitted tending to prove certain declarations, made in the absence of the defendants, by persons with whom it was assumed they were confederates, which tended to implicate the defendants in the conspiracy charged.

It is said, since there was no evidence tending to establish the conspiracy charged, it was manifestly wrong to admit evidence of declarations made by others, in the absence of the defendants, which tended to implicate them in a conspiracy which did not exist, or which had not been satisfactorily established.

The established rule is, that the acts and declarations of one conspirator, made in the absence of the others, in furtherance of the common design, are only admissible after a prima facie case of conspiracy has been made by competent evidence.

After the fact of the conspiracy has been proved, or after evidence, proper to be considered by the jury, has been admitted which tends to establish the existence and nature of the conspiracy, the declarations of any of the conspirators during the pendency of the criminal project are admissible against all. 4 Am. & Eng. Encyc. of Law, 631, and notes.

Much latitude must, however, be allowed by the court in marshalling the facts and circumstances which bear upon the issue, and it must be left very largely to the discretion of the court trying the cause to determine whether or not there has been introduced evidence sufficient to establish prima facie the existence of a conspiracy so as to justify the admission of the acts and declarations of one confederate against another. New York, etc., Co. v. Gleason, 78 N.Y. 503; State v. Winner, 17 Kan. 298; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70, 3 N.E. 633. Such declarations are admissible after the confederacy has been thus established, upon the theory that the conspirators have, by the act of conspiring together, become so identified with each other in a common design as to assume as a body or association the attributes of individuality, thus rendering whatever is done or said by any one during the progress of the joint enterprise, in furtherance of the common purpose, admissible as the act or declaration of all. McKee v. State, 111 Ind. 378, 12 N.E. 510; Williams v. State, 47 Ind. 568; Walton v. State, 88 Ind. 9; Goins v. State (Ohio), 46 Ohio St. 457, 21 N.E. 476.

The principles which control in regard to the competency of acts and admissions of one partner, when offered in evidence against the firm, and of agents against their principals, govern in respect to the acts and declarations of one conspirator against those confederated with him. Declarations or admissions made by one partner in the absence of the others, are not competent to prove the existence of the partnership so as to bind those who are not present, nor can the fact of agency be established as against the principal by mere admissions of the agent. King v. Barbour, 70 Ind. 35; Boor v. Lowrey, 103 Ind. 468, 3 N.E. 151; Pierce v. McConnell, 7 Blackf. 170; Graham v. Henderson, 35 Ind. 195. So the existence or nature of a conspiracy can not be established by the acts or declarations of one conspirator in the absence of the others, unless the acts or declarations were in themselves in execution, or for the promotion of the common design. Clawson v. State, 14 Ohio St. 234.

The declarations which are admissible are those which are made between the beginning and ending of the conspiracy, for the promotion of the common criminal or evil purpose, and the fact that a conspiracy existed, and was in progress at the time the admissions were made, must first appear in some way satisfactory to the court. People v Parker, 67 Mich. 222, 34 N.W. 720. If the conspiracy has not yet been formed, or if it has ended by the consummation of the criminal design, mere admissions or narrations of what has taken place, which had no tendency to promote the common design, are not admissible against those who were not present when the admissions were made. Ford v. State, 112 Ind. 373, 14 N.E. 241, and cases cited; Heine v. Commonwealth, 91 Pa. 145; State v. Johnson, 40 Kan....