People v. Pitcher

• Decision Date: 14 May 1867
• Citation: 15 Mich. 397
• Court: Michigan Supreme Court
• Parties: The People v. John Pitcher and another

15 Mich. 397

The People v. John Pitcher and another

Supreme Court of Michigan

May 14, 1867

Heard May 4, 1867 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lenawee circuit.

The defendant, John Pitcher, was tried and convicted upon an information for receiving and concealing stolen property. The fact of the larceny was proved by Arnold P. Graves, from whom the property was stolen. The testimony of David C. Newman, an accomplice, was introduced on the part of the people. This witness testified that he and Samuel Reed stole the property in question, and carried it in the night time to the house of the defendant, who received and concealed it. The leading points made in the bill of exceptions were upon the rulings of the court touching the admission of the testimony of this witness.

The exceptions are stated in the opinion.

Wm. L. Stoughton, Attorney-General, and C. E. Weaver, for the people:

1. The first assignment of error is "in overruling the objection of the counsel for the defendant, to the question put by counsel for the people to the witness, David Newman, as to the purpose for which he and Reed left the wool at Pitcher's."

The court only permitted the witness to respond to the question, by stating whether he knew of any arrangement between himself and Pitcher, or Pitcher and Reed, as to the purpose of delivering the wool to Pitcher; not, however, testifying to any statement of Reed's on that subject, prior to the delivery of the wool, or some portion thereof, to Pitcher. With this restriction, the question was clearly competent.

But, even if it were otherwise, the defendant would have no cause of complaint. There was no answer to the question. Error will not lie in such a case: 13 Mich. 21; 4 Parker's Cr. L., 344, 376.

This principle also disposes of the third assignment of error. No answer whatever was given to the question objected to.

2. The second, fourth, fifth and sixth points made in the bill of exceptions, relate to the statements and acts of Reed, from the commission of the offence up to the disposition of the wool, and the question raised is clearly set forth in the charge asked and refused, and in that given by the court. There was no error in the admission of this testimony, or in the charge of the court. In all cases of conspiracy, or other crimes perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice, in the prosecution of the unlawful enterprise, is considered the act of all, and is evidence against all: 1 Greenl. Ev., § 233; 2 Peters 358; 3 S. and R., 9; 4 Shepl. 293; 1 Wheat. 298; 1 Wheat. Am. C. L., 702, and cases there cited.

The evidence, to establish the unlawful combination, need not be conclusive. It is only necessary that it should be sufficient in the opinion of the court, prima facie, to establish the fact of combination between the parties, or to be laid before the jury as tending to establish such fact. If there is any such evidence, it becomes a matter of discretion, and can not be reviewed: 1 Doug., p. 106; 12 Mich. 449.

3. The seventh, eighth, ninth and tenth points made in the bill of exceptions relate to the introduction by the prosecution of evidence showing the subsequent conduct and flight of Samuel Reed, one of the defendants. Standing alone, this would not be evidence against Pitcher, but it was offered in connection with other evidence, tending to show that Pitcher incited and advised his flight, in order to prevent an investigation into the larceny and concealment of the wool. And when thus brought home to the defendant, it would be competent both as showing his guilty knowledge, and as an attempt to evade justice: 1 Whart. Am. C. L., § 714; 21 Whart. 509.

It is not necessary that the relevancy of the evidence should clearly appear at the time it is offered; and if not rendered material by proof connecting it with the issue, it is sufficient for the court to rule it out of the case: 1 Greenl. Ev., § 51; 8 Mich. 357.

The charge of the court places the evidence on the true ground, and ruled out all except what was actually connected by the proofs, with the defendant.

4. The eleventh assignment of error is in relation to the introduction of the testimony of James K. Johnson, as to what was said and done at the house of the defendant, Pitcher, when he was there in the capacity of deputy sheriff, on the 10th or 11th of June. It clearly appeared that defendant was at home, and it was a question for the jury to ascertain whether he understood and assented to the false statements made by his wife: 1 Whart. Am. C. L., § 696; 3 Hawkes 377; 10 Ga. 511.

5. The thirteenth assignment of error is based on the ruling of the court upon the objection to the question put to George Morton, as to the weight of the fleeces raised by defendant Pitcher, as he claimed at the time he examined them at defendant's house.

An examination of the evidence will at once show the materiality of this question. The defendant attempted to show, upon the trial, that the fleeces of wool which he raised were of the same weight as those stolen. For the purpose of rebutting this testimony, it was clearly competent for the prosecution to show that the fleeces which the defendant claimed he raised, at the time he sold his wool, were of much less weight.

In conclusion, we claim that no injury has been done to the defendant. Error, without injury, is no ground for reversing a judgment: 6 Mich. 287; 3 Hill 214; 2 Hill 205; 2 Comst. 193; 4 Denio 153.

And if, inadvertently, in the course of the trial, there was any error, which we do not, however, concede, it was corrected in the charge of the court; and all evidence not clearly competent was withdrawn from the consideration of the jury. They could not have been misled, and we submit that the verdict ought not to be disturbed.

C. A. Stacy, for defendant Pitcher:

The exceptions to the admission of evidence in this case were all based on the idea that the defendant, John Pitcher, was to be held responsible for his own acts and statements alone, and not for the admission or acts of Samuel Reed or David Newman, made out of his presence, and not afterwards sanctioned or affirmed by any admission or acts of John Pitcher himself.

1. A confession is only evidence against the party himself who made it, and can not be used against others: 5 Ohio 539; 2 Peters 364; 19 E. C. L., 428.

2. The statements or letters of another party implicated must appear to have been said or written in furtherance of the common design and not as a mere relation of a past transaction: Roscoe Cr. Ev., 77, 84, note 1, 417; 24 Howe State Trials, 475; 1 Phillips Ev., 95; 1 Wharton Cr. Law, 704, 705; 10 Pick. 497; 11 Id. 362; 12 Conn. 243; 19 Id. 250; 8 Met. 436; 16 Me. 465, 469, 293; 4 Gray 411; 9 Cush. 36; 1 C. and P., 521; Greenl. Ev., §§ 108, 110, 111.

These cases show that in a case like the present the statement of a co-defendant, not on trial, should not be received in evidence against the defendant not present or acquiescing in the truth of the statement. Without the objectionable testimony, there was nothing to connect this defendant with the transaction but a bare statement unreasonable in itself and uncorroborated in anything tending to show the participation of the defendant in the transaction.

3. The requests of the counsel for the defendant to the circuit judge should have been granted. There is nothing in the testimony which shows the time of the sale of the wool except Newman's statement, and that leaves the time indefinite.

Christiancy, J. Martin, Ch. J. and Cooley, J.,Campbell, J. concurred.

OPINION

Christiancy J.:

The charge against the defendant Pitcher was for receiving, buying and concealing thirty-five fleeces of wool, the property of one Graves, knowing the same to have been stolen.

On the trial one Newman testified that he, the witness, and Samuel Reed (the defendant not on trial) stole the fleeces of wool from the barn of Graves, on the night of the 4th day of July, put the same into Reed's wagon, and drove in a circuitous route to the house of the defendant Pitcher, stopping in the road opposite his house and witness remaining in the wagon; that this was about one or two o'clock on the morning of the 5th of July; that Reed got out of the wagon and went in, and when he came out defendant Pitcher came out with him, having on only his shirt and pants, and being bareheaded and barefooted. That they came out near the gate, and Reed handed Pitcher the wool, who carried it in on the east side of the house, but, after they passed the corner of the house, witness could not see where they went. Reed also took a load of the wool, and so on till they took it all out.

That Reed and Pitcher had a little conversation, but witness did not know what it was; he did not see where they took the wool; he never saw it again, and knew nothing more of it except what was told him by Reed.

There was also evidence tending to show that Pitcher sold the wool on the 20th and 28th of July.

Newman was asked for what purpose he and Reed left the wool at Pitcher's. To this exception was taken, but the witness was allowed to answer. We think the question was relevant and admissible, and if it had not been so, there was no error, as the question elicited no evidence except that witness knew of no arrangement with Pitcher except what Reed told him, without stating what it was.

But the same witness was afterwards allowed, in answer to other questions duly objected to, to state what Reed told him after leaving the wool at Pitcher's and acts of Reed in reference to the matter, from which it appeared in substance that on the way home, after leaving the wool...