Owens v. State

• Decision Date: 31 December 1885
• Parties: Tom Owens v. The State.
• Court: Tennessee Supreme Court

84 Tenn. 1

Tom Owens

v.The State.

Supreme Court of Tennessee.

December Term, 1885.

FROM DAVIDSON.

Appeal in error from the Criminal Court of Davidson County. MATT. W. ALLEN, J.

ALLEN G. HALL and E. A. PRICE for Owens.

Attorney-General LEA for the State.

DEADERICK, C. J. delivered the opinion of the Court.

Plaintiff in error was convicted in the criminal court of Davidson county of murder in the first degree and sentenced to be hung. A new trial was refused, and he has appealed in error to this court.

His counsel have presented his case in this court with marked force and ability, and in its progress below have taken numerous exceptions to his Honor's ruling. They have also criticised, in this court, the charge of his Honor, but inasmuch as the charge was not made a part of the record by bill of exceptions, we are precluded from considering the objections to it. It is true that what purports to be the charge of the court appears in the transcript, but it is after the bill of exceptions, which is signed by the court, and nothing therein recited can be construed as making the charge a part of it.

The theory of the State is, that defendant below murdered one Meyer Freidman, and that Meyer Muskovitz incited, procured, counseled, hired and commanded him to commit the offense. It is so charged, in one count of the indictment, and in another count he is jointly charged with said Muskovitz with the commission of the murder.

Upon the theory that defendant, Owens, was principal, and Muskovitz accessory, before the fact, much evidence of the declarations and acts of the latter was admitted, in the progress of the trial, under the law governing prosecutions for conspiracy to commit crime.

A conspiracy is, in general terms, a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose: 3 Greenl. Ev., sec. 89.

When the conspiracy is established, the act or declaration of one conspirator in the prosecution of the common enterprise, is considered the act or declaration of all, and is evidence against all. A foundation, however, must or should be laid to establish a prima facie case of conspiracy before the admission of evidence of acts or declarations of one as evidence against all: 1 Whar. Am. Crim. Law, sec. 702; 1 Greenl. Ev., sec. 111.

But it is within the discretion of the court to permit evidence to be given, the relevancy of which is not apparent at the time, which the prosecution shows will be rendered so thereafter: 3 Greenl. Ev., sec. 92; 1 Greenl. Ev., sec. 111.

And every one entering into a conspiracy is a party to every act which has before been done by the others, and to every act by the others afterward, in furtherance of the common design: Ibid.

From the foregoing authorities it appears that all acts and declarations of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy had its origin until its design has been consummated, or until it is abandoned. When it was entered into is usually established by circumtantial evidence. But the declarations or acts of one can not be admitted against another, unless the facts and circumstances warrant the conclusion that a conspiracy was existing at the time of such declarations or acts.

On March 25th, preceding the killing on April 12th, Muskovitz applied to Judge Ferris to procure the release of defendant, then confined in the county...