State v. Priesmeyer, 30690.

Citation37 S.W.2d 425
Decision Date25 March 1931
Docket NumberNo. 30690.,30690.
PartiesTHE STATE v. THEODORE PRIESMEYER, LOUIS PRIESMEYER, JR., LIZZIE PRIESMEYER and ALICE PRIESMEYER, Appellants.
CourtUnited States State Supreme Court of Missouri
37 S.W.2d 425
THE STATE
v.
THEODORE PRIESMEYER, LOUIS PRIESMEYER, JR., LIZZIE PRIESMEYER and ALICE PRIESMEYER, Appellants.
No. 30690.
Supreme Court of Missouri.
Division Two, March 25, 1931.

[37 S.W.2d 426]

Appeal from Bates Circuit Court. — Hon. W.L.P. Burney, Judge.

REVERSED AND REMANDED.

E.E. Hairgrove for appellants.

(1) The permitting of the hearsay testimony of Arl Richardson was and is such a palpable error. Sec. 22, Art. 11, Mo. Constitution; State v. Waggoner, 78 Mo. 644; State v. Welford, 66 S.W. 570. (2) The court erred in giving the instructions 1, 2, 3 and 8 in regard to conspiracy, for the reason that no competent evidence whatever was offered by the State proving or tending to prove a conspiracy on the part of the defendants, or any of them, with Arl Richardson.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) There was introduced in evidence over the objection of the defendants, the confession of one Arl Richardson. This was not from the lips of Richardson, but from some four witnesses who heard him make the confession. Richardson did not testify. Under the authorities, it would seem that the objection to this testimony should have been sustained. (a) Declarations and confessions made after the transactions are fully over, are admissible against the party only who made them, and one conspirator is not liable for the acts of another outside and independent of the conspiracy. Kelley's Criminal Law, sec. 925; State v. Buckley, 318 Mo. 25. Declarations of a co-conspirator made after the common criminal enterprise has been accomplished and merely narrative of past occurrences are inadmissible against another conspirator. State v. Forshee, 199 Mo. 145; State v. Hayes, 249 S.W. 50; State v. Buckley, supra. (2) When, after the commission of a crime, some act is undertaken by the conspirators to avoid exposure, to conceal the evidence of the crime, to secure the proceeds, to take means to prevent or defeat a prosecution during such time, statements of one conspirator are admissible in evidence against another. 16 C.J. 661; People v. Mol, 137 Mich. 692, 100 N.W. 913, 68 L.R.A. 871; 4 Ann. Cases 960; People v. Schmidt, 33 Cal. App. 426, 165 Pac. 563. (3) If the purpose of the visit to Richardson in jail is to be considered subject to this rule, then the statements and declarations of Richardson were properly admitted. 16 C.J. 663; People v. Hall, 51 App. Div. 57, 64 N.Y. Supp. 437. On the other hand, if the theft of the Knoop chickens was the last act of the conspiracy, then the purpose of the visit to the jail cannot be considered, and the statements and declarations of Richardson were pure hearsay and their admission in evidence was error. (4) Appellants' assignments in his motion for new trial complain of the giving and refusing of instructions. These assignments are too indefinite to merit review by this court. Sec. 3735, R.S. 1929; State v. Standifer, 289 S.W. 857; State v. Simon, 295 S.W. 1080. (5) It was not necessary that each defendant be present when the crime was committed...

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