Court
of General Sessions, New Castle County, November Term, 1910.
INDICTMENT
(No. 32, January Term, 1910) for conspiracy to commit
larceny. Verdict of guilty. Writ of Error sued out of Supreme
Court by defendant.
(See
report of case in Supreme Court, 3 Boyce--).
The
statement of the prosecuting witness, at the trial, as to the
facts and circumstances constituting the alleged conspiracy
was in substance as follows:
"I
live at 217 West Second Street, Wilmington, and my business
is that of a baker. I have lived in Wilmington fourteen
years. I had dealings with Samuel Effler, alias Charles
Heffler, the defendant, in the year 1909. In March 1909, a
man named Needles, who lived in the next block, used to come
to my place every day to buy bread. He had a drygoods store
at 228 King Street. The defendant Effler came to the house
with Needles. Needles and Effler came around to my place and
told me they had a chance to buy out a big business in
Philadelphia, and could make a couple thousand dollars, and
if I could invest $ 5,000., Effler and Needles would go
together and invest $ 5,000. I told them I would think about
it. I finally told them I would put up some money and go in
and buy this store. I told them that $ 3,500. or $ 3,600. was
all that I could put up. Another man came with Needles and
Effler to see me about buying out this store in Philadelphia.
He called himself Gaylor. I afterwards found out by the
papers that his name was Goldstein. After seeing this man
Gaylor in prison in Rochester, New York, I learned that
Goldstein was the man's name. Goldstein said that he had
a business that he would like to sell, and Effler and Needles
said they would like to buy, and could make so much money--a
couple thousand dollars--and Needles and Effler should put in
$ 5,000. and I $ 5,000. to buy them out. The defendant Effler
came to see me about three times at the store, all the time
with Needles, and talked about this matter. When Goldstein
alias Gaylor, was in my place with Effler and Needles, they
all talked about buying Goldstein's store out in
Philadelphia. I finally agreed to go in with them, and I got
the $ 3,600. from the bank. I got this $ 3,600. in two
different amounts on my check. The first time I got $ 1,500.
I got $ 2,100. afterwards. When I got the last sum of $
2,100. I did not go to Philadelphia on that day, but it was
eight or ten days maybe before I went to Philadelphia. In the
meantime, I had this $ 3,600. at home. When they first
started talking to me about this proposition, I think it was
from the first to the fifteenth of March, 1909. I know this
man Effler very well. I am sure he is the right man. Needles
and Effler both asked me to go to Philadelphia and buy out
this stock, and I went there to carry out this agreement to
buy the stock. They all three told me that we needed to have
the cash because the people would not accept a check. When I
went to Philalelphia with these two men, Effler and Needles
I had the $ 3,600. in my pocket. When I got in Philadelphia
Effler and Needles said to me that before buying out that
stock we would go and see a friend of theirs who knows what
the stock is. They told me it was drygoods. I did not know
anything about drygoods. When they suggested that we go to
see this friend, I said all right. It would be better for us
to have one man more. We went to Tasker Street or Thatcher
Street--I don't know anything about Philadelphia, maybe
go there one or two times a year. We went there by trolley
car and went into a house on that street. I saw a man and a
woman there. I don't know who they were. I had never seen
them before. When I went in the house, I had my money in my
pocket. This man Effler had money. He showed me he had money.
I didn't examine the money they had. I could not tell how
much they had, but it was a big bunch of money. When we got
in this house on Tasker Street, we were all sitting at the
table in the first room down stairs. Effler counted how much
money he had and when he started to count the money, two
detectives made a noise in pushing open the door and came in
the room and said we were the people they were looking for
that we had counterfeit money, and took a ten dollar bill
from the table and tore it open down the length of the bill,
making two bills out of one, so that one side of each was
blank. I thought they were detectives then, now I know they
were the same robbers like these people here. When they tore
open this ten dollar
bill, they said: 'Ain't you got any money?' I
said: 'Yes.' The other detectives said to show it up,
and I showed it up. My money was all right and he took my
money and mixed it up with the other. The detectives said
'Needles and Effler, you are arrested,' and Needles
and Effler told me in Jewish 'You had better step out
because there is a little trouble with our money. I will see
you afterwards.' And I was excited and left the room and
went out on the pavement. I was right by the door on the
step, and waited three or four minutes and I just started to
go in the doorway, and I could not find anybody in and I
never thought of the money, I was so excited, but I never
thought the money was lost. When I got back in the room, the
people were gone with the money. There was nobody in the
room. This took place in Philadelphia, between seven and
eight o'clock, and I came home that night and I went to
Needles' store and I could not get in the store.
Everything was empty. After that happened, I saw lots of
people going there but not the same people. I never saw
Effler there anymore. I saw this man Goldstein in Rochester,
New York, in prison. After I lost my money, I saw in a Jewish
paper where a man in Philadelphia got robbed of $ 5,000.,
like I was robbed, and I took the train and went to
Philadelphia, and saw Effler on the street. It was eight or
nine months after I lost my money. I was on a street car,
with Mr. Ratledge, and I saw the man standing on the street,
and that is the man (indicating the defendant) that I saw
standing on the street. That is the right man all right, and
I had him arrested."
After
proving by the prosecuting witness and other witnesses, the
facts tending to establish the alleged conspiracy, the state
produced as a witness one Silverman and propounded to him,
among others, the following question:
"I
will ask you whether or not in the year 1909, fairly close to
March, 1909, this defendant, in company with other men,
secured from you any money by any means or devices, or
designs, similar to those which you have heard Mr. Reches
(prosecuting witness) testify about in his case?"
(Objected
to by counsel for defendant as immaterial, unless the state
shows that the defendant has been convicted of the offense
sought to be proved; citing 2 Russell on Crimes, 700; Russell
on Criminal Evidence, 578; Williams v. People, 166
Illinois 132, 46 N.E. 749. The state contended that the
testimony sought to be introduced would make out a plan or
scheme of operation, which would tend to corroborate the
proceeding witnesses of the state and to establish the
probability of the commission of the offense charged in the
present case; citing State v. Raymond, 53 N. J. Law
Rep. 260, 21 A. 328; State v. LePage, 57 N.H. 295,
24 Am. Rep. 69.)
Verdict, guilty.
PENNEWILL
C. J, and BOYCE, J., sitting.
OPINION
PENNEWILL, C. J.
On
account of the importance of the question raised by the
state's offer, we have given it as careful consideration
as was possible since the adjournment last evening.
The
witness, now upon the stand, was produced by the state to
show that the defendant, together with the other alleged
conspirators, about the time of the commission of the offense
alleged in the indictment, cheated and defrauded the witness
in the same manner as he is charged with having cheated and
defrauded the prosecuting witness in the present case.
The
testimony is offered under the rule or principle of law which
permits similar offenses committed by the defendant at or
about the time of the commission of the one charged, to be
proved, where fraud is involved in the charge and where the
intent or guilty knowledge is an essential
element of the charge to be proved. There is no doubt about
the principle. Indeed, it has been recognized in this state
in the case of Fait and Slagle Company v. Truxton,
17 Del. 24, 1 Penne. 24, 39 A. 457. But the question
now is as to the application of such a rule in a case like
the one now before us.
The
rule seems to be especially applicable to the case of
conspiracy and fraud.
Wigmore,
in his work on Evidence (Volume 1,
p. 302), says:
"In
most cases of conspiracy and fraud, the question of intent or
purpose or design in the act done, whether innocent or
illegal, whether honest or fraudulent, rarely admits of
direct and positive proof; but it is to be deduced from
various circumstances of more or less stringency and often
occurring, not merely between the same parties, but between
the parties charged with the conspiracy or fraud and third
persons. And in all cases where the guilt of the party
depends upon the intent, purpose, or design with which the
act was done, or upon his guilty knowledge thereof, I
understand it to be a general rule that collateral facts may
be examined into, in which he bore a part, for the purpose of
establishing such guilty intent, design, purpose or
knowledge. * * * In short, wherever the intent or guilty
knowledge of a party is a material ingredient in the issue of
a case, these collateral facts,...
