Osborne v. State

• Decision Date: 22 May 1911
• Docket Number: 14,916
• Court: Mississippi Supreme Court
• Parties: C. W. OSBORNE v. STATE

55 So. 52

99 Miss. 410

C. W. OSBORNE v. STATE

No. 14,916

Supreme Court of Mississippi

May 22, 1911

APPEAL from the circuit court of Tallahatchie county, HON. N. A TAYLOR, Judge.

C. W Osborne was convicted of burning a stock of goods with intent to defraud an insurance company, and appeals.

The facts are fully stated in the opinion of the court.

Error overruled.

Dinkins & Caldwell, for appellant.

The rule with reference to the admissibility of statements and admissions of one conspirator against his fellows is, that after prima facie proof of the existence of a conspiracy is made, that such statements or admissions. may be heard which were made before the crime was complete. Such statements and admissions made afterward are always rejected by the court. Nothing said or done by one conspirator against his fellow not in his presence, subsequent to the execution of the common purpose, has been allowed by any of the superior courts to go to the jury. This rule is very satisfactorily stated in 12 Cyc., 435 et seq., especially in par. 2, on page 439, but the courts of this state have so often, so clearly and so distinctly announced and enforced this rule that we shall confine ourselves mainly to reference to decisions of this court.

In the Browning case, 31. Miss. 657, a case like the one at bar resting wholly upon circumstantial evidence, the court says:

"The offense charged, if committed at all, was unseen by all save the parties engaged in its perpetration. The whole transaction was shrouded in secrecy. The very fact of the homicide, as well as the question, who were the perpetrators of the deed, depended entirely upon indirect or circumstantial evidence. The charge, as laid in the indictment, pre-supposes the co-operation of at least two persons in the commission of the offense. It may hence well be conceded that peculiar and urgent circumstances existed in the cause, which authorized the application of the exception of the rule above stated, if any combination of circumstances could authorize a departure from the prescribed mode. But it should ever be borne in mind, that no man can be asserted to be legally guilty of an offense unless his guilt shall have been established according to the forms and principles of law; and that in no case should a disregard of either the law itself or its established forms be tolerated, from any considerations of difficulty in the conviction of offenders or from the supposed manifest guilt of the accused."

This was said with reference to the admission of the acts and declarations of an alleged conspirator after the consummation of the conspiracy.

This reasoning in the Browning case has been followed by this court without variation ever since it was announced. It is quoted verbatim in the Foster case, 92 Miss. 257.

In the Lynes case, 36 Miss. 617, it was held error to refuse the following instructions:

No. 4. "That the confession of one accomplice or conspirator is no evidence against another unless made before the completion of the original design; and if the jury believe that the confession of Hightower was made after the killing of Landram, they are but a relation of past occurrences, after the purpose of the conspiracy had been accomplished, and are not evidence against the defendants on trial."

No. 6. "The actions and declarations of one of several conspirators, the conspiracy being first established, are evidence against the others, but such acts and declarations must have been performed and made during the pendency of the criminal enterprise, and before its completion or abandonment, or else, being no part of the res gestae, but the mere relation of a past transaction, and cannot be received by the jury as evidence to charge the other confederates."

In the Garard case, 50 Miss. 147, a like instruction was refused, which was held to be error by this court.

In the Simmons case, 61 Miss. 248, in which the defendant was charged with the murder of Gen. Tucker, the state was allowed to prove that Dick Shaw stated after the killing, that if he knew where the defendant was, he would write to him, and that his father would let him have a horse, if he needed one. Other conversations of Shaw after the killing and in the absence of the defendant were given in evidence, all of which the court held to be error, though ample proof of the existence of a conspiracy was made. See, also, Gillam v. State, 62 Miss. 547; Wilson v. State, 71 Miss. 880; Brown v. State, 72 Miss. 990; Foster v. State, 92 Miss. 257.

The instruction refused in the Lynes case, supra, were almost identical with instruction No. 3, refused to the appellant. The same question presented by the instruction was also presented by objection to the testimony of the witness when delivered and by motion to exclude.

The trial court was asked in instruction No. 5, which was refused, to advise the jury that the testimony of the witness, Joe Williams, should be scrutinized with great care and caution on account of his connection with the crime charged against him, and that the jury should not only consider the said witness' connection with the crime charged, but also contradictory statements admitted to have been made by him.

Examination of the decisions of this court in the Lynes case, 36 Miss. 617; the Green case, 55 Miss. 455; the Wilson case, 71 Miss. 880; and the Brown case, 72 Miss. 990, make it clear that it is a defendant's right to have the jury so instructed. It is not merely how a jury may regard the testimony of an accomplice, but to advise them that such testimony is viewed with suspicion and distrust by the law. It is a legal question, a distrust or suspicion which the law entertains that the defendant is entitled to have the jury instructed upon.

It is true that the court may determine as to the language or wording of an instruction intended to express the law's distrust or suspicion of such testimony, but it cannot refuse the defendant's request to advise the jury upon so important matter. See especially the Green case, supra; instruction No. 2 asked by the defendant and refused by the court was in these words:

"The court instructs the jury that in determining your verdict you will not consider any evidence of the conviction of Joe Osborne or R. E. Tannery."

The indictment and the conviction of both Joe Osborn and R. E. Tannery were introduced in evidence over appellant's objection, and his motion to exclude, afterwards made, was overruled.

The indictment was for a separate and distinct offense from that which appellant was on trial. No court, so far as we have been able to ascertain, has ever allowed the state to show on the prosecution of one conspirator, the conviction of his fellow, under the same indictment, but here, we have the record of a trial court allowing the state to introduce the record of the indictment and conviction of the appellant's co-indictees, for a separate, distinct and different offense under an indictment returned upon a different law.

The governing rule with reference to the question raised by the refusal of instruction No. 2 above, is stated in 12 Cyc. 445, as follows:

"Where two persons have been jointly indicted for the same offense, but separately tried, a judgment of conviction against one of them is not competent on the trial of the other, in as much as his conviction is no evidence either of joint action, or of the guilt of the accused. The same rule applies where two are separately indicted and tried for the same crime."

The admission of the proof of the conviction of Joe Osborne and Tennery not only violates the rule as above announced, but also the rule which prohibits the introduction of admissions of co-conspirators made after the crime is complete. The right of a defendant in a criminal case, which our laws profess so jealously to guard, do not extend so far as to justify the introduction of such records in behalf of a defendant, and how it can be conceived that such records may be introduced by the state in its prosecution, can not be explained.

In Nix v. State, 34 S.W. 764, it was held that a statement made by a son, who was a co-conspirator, made after he had walked one hundred yards from the place of the killing, that his father had killed the decedent, was held not admissible. On this question, see People v. Bearss, 10 Cal. 68; State v. Fertig, 98 Ia. 139; Clark v. Com., 14 Bush. (Ky.) 166; People v. Mullins, 5 A.D. 172; People v. Kief, 136 N.Y. 661; State v. Bowker, 26 Ore. 309; Bell v. State, 33 Tex. Cr. 163; Harper v. State, 11 Tex.App. 1.

Carl Fox, assistant attorney-general.

It is argued that testimony as to statements made by appellant's co-conspirators after the store had been burned was erroneously admitted. Counsel's theory is that the acts and admissions of co-conspirators done and made after the conspiracy is formed and before the object of it is consummated are admissible, and that the object of the conspiracy in this case was the burning of the stock of goods and that it was consummated when it was burned. I think counsel are in error. The object of the conspiracy was to defraud the insurance companies, and burning the store and stock of goods was merely a means to that end. When the admissions testified about were made, appellant had never settled with the insurance companies, but was trying to do so.

The correspondence between defendant and Dr. Emery extended from the latter part of March to the 27th day of April, the fire having occurred on the night of the 4th of February. The admissions of co-conspirators testified about by witnesses were made long before this correspondence. The object of the conspiracy, therefore, had not been accomplished. Moreover the admissions objected to were made in an attempt to conceal the...