State v. Ryan

• Decision Date: 23 October 1905
• Citation: 47 Or. 338,82 P. 703
• Parties: STATE v. RYAN. [*]
• Court: Oregon Supreme Court

82 P. 703

47 Or. 338

STATE v. RYAN. ^[*]

Supreme Court of Oregon

October 23, 1905

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

J.C Ryan was convicted of larceny, and he appeals. Affirmed.

James McCain and W.H. Holmes, for appellant.

I Homer Van Winkle and P.H. D'Arcy, for the State.

WOLVERTON C.J.

The defendant was convicted of the crime of larceny, and appeals from the judgment rendered in pursuance thereof.

The subject of the larceny was $2,000, consisting of 100 gold $20 pieces, current money of the United States, alleged to have been the property of one John F. Roth, the prosecuting witness. Roth testified in substance that he was acquainted with the defendant; that he met him in Salem, Or., at the Willamette Hotel on the 23d day of September, 1904; that defendant came to a room in the hotel occupied by witness and a party by the name of Huston, and was introduced to him by Huston; that witness met Huston in Portland, about two days prior to this date, in Doctor Pohl's office, and had a conversation with him therein; and that he explained what he was up for. Witness continues (quoting from the bill of exceptions): " Huston told me that two men here at Salem were trying to get up a foot race, and he said that they wanted some bona fide business man to come up here and hold the money for them; and he says, if he could get me to come up here, he would assure me that he would pay me well for my trouble. He said I did not need to bet anything. He said them two fellows had lots of money. All they wanted was for me to come up here and hold the money, and divide it fairly after the race was over, and I agreed to come up on those conditions and I came up here, and on Friday evening we went to the hotel, and Ryan came up to our room, and Huston introduced me to him, and he [Ryan] explained the thing differently. He said he wanted to bet some money on a foot race against Raymond. He said Raymond was a friend of his, and he wanted me to bet against Raymond for him, and he said he would pay me for my trouble. Next day he met us again and wanted to know if I had any money in the bank to show I was a business man in Portland. The next day Ryan came to the hotel again and wanted to know if I had any money to show, in case of an argument, that everything was all right, that I was responsible, and I told him that I had a bankbook, the money that was put in the bank from our business, and a small check, and he said in case of an argument he wanted to show about $2,000 in the bank; that that would be enough to satisfy Raymond probably, if he lost that much money and wanted to protest the race. He wanted me to go back and make arrangements so I could get $2,000, and I went back and explained the case to my brother-in-law, and he let me have that amount of money. Ryan said we might not have to draw it and I agreed to it, and we came back here Tuesday, Huston and I, and Ryan met us and went to the hotel with us, and we had dinner, and after dinner he [Ryan] went out. About 1 o'clock Ryan met us again, and he took us down to his room--it was over a saloon on the corner--and he introduced me to this man Raymond, and Raymond said that he wanted to bet some money on a foot race. Ryan gave me a bunch of greenbacks marked $2,500, and he said, when Raymond came, 'You bet this money with him,' so Raymond said he wanted to bet, and he put down $2,500 in greenbacks. Raymond said he would go back to the bank, and Ryan gave me a bunch, $3,000, all in greenbacks, and I bet Raymond all this other bunch. It was put in a little grip, and Raymond went downstairs with this man, Morris. While he was down there, Ryan gave me another bunch of $5,000 in greenbacks, but he says, 'Go down and draw your money,' and he said, 'I want the money.' I did not think anything about it being a scheme, and I went down to draw my money. It was $2,000. I got it all in 20-dollar gold pieces. When I got back, Raymond says, 'I have got $5,000 more,' and I bet him the $5,000 which Ryan gave me. Ryan says, 'Did you draw your money from the bank?'--and I had it in a little bag, and Ryan took it and he put it in a grip and he says, 'We will run the race,' and he says, 'Leave the money in the bank,' and he stepped out about five or ten minutes and came back and showed me a little receipt, which read: 'One grip and contents deposited here.' He folded it up and put it in his pocket, and said, 'After the foot race we will get it,' and we went out to the ball ground, and, when we got there, there were a few boys in there, about 16 or 18 years old, playing ball. Then it was decided to go back of the ball ground, and they went back there, and Ryan stepped off 60 feet and told me to go to one end while he measured off 60 feet, and I stayed up there, and the men started to run and one fell down, and Ryan said to Raymond: 'We will run this thing over inside of 10 days,' and he said: 'All right. We will go to the race track or some other place,' and we agreed all around that we would run it off in 10 days, and Ryan said: 'We will leave the money in the bank until after the race comes off,' and I went back to Portland that same night, and Huston went along." The witness further testified in substance that he came to Salem on the 23d of September in company with Huston; that Ryan, Raymond, Morris, Huston, and another man accompanied him to the race; that Morris was one of the runners and Huston the other; that Ryan was supposed to be betting on Huston, and Raymond on Morris. The defendant offered evidence tending to show that he met Roth, the prosecuting witness, for the first time on the 23d of September, 1904; that he was not introduced to him, but that Roth came to him on the street and said to him, in substance: " 'We understand that you know something about athletics, and [referring to the foot race in question] we would like for you to be stakeholder,' which the defendant consented to do. He said, amongst other things, to the defendant, that he wanted it understood that this race was to be run as private as possible, and, as his partner was interested with him, he did not want him to know this race was coming off; and, further, the defendant testified and offered evidence tending to show that, after the race was run and was unsatisfactory to Roth, it was agreed between Roth and Raymond, who was backing the other runner, Morris, that the race should be again run on the following Saturday. That the defendant retained the money until late in

the evening Saturday, and after the time had expired within which the race was to be rerun. Raymond and Morris, his runner, were present, ready to rerun the race, but that Roth did not come with his runner to contest. That after his time had expired [[[the defendant] as stakeholder turned the money in his hands over to Raymond". The foregoing testimony illustrates fairly the respective positions of the parties litigant. There was an objection interposed to the prosecuting witness detailing what was said and done by Huston in Portland, that being two days prior to the time they met the defendant in Salem, on the ground that such evidence was incompetent by which to establish the defendant's guilt. The court, however, permitted it to go to the jury upon the assurance on the part of the state's attorney that he would connect up Huston with the defendant in the transaction later on in the trial. Error is now predicated upon the admission of such testimony, not because of the order in which it was allowed to go to the jury, but solely upon its incompetency.

The theory of the state is that both Huston and the defendant were, with others, engaged in a conspiracy to wrongfully obtain the money in question from Roth, and that what was said and done by Huston in Portland was in furtherance of such conspiracy, and therefore tantamount to the utterances and acts of the defendant himself. It is a matter, perhaps, of substantive law, rather than a rule of evidence, that what one conspirator says and does during the existence and in furtherance of the conspiracy are the utterances and doings of all, on like principle that the acts of an agent within the legitimate scope of his employment bind his principal as if done by the latter. The conspirators are all principals, and the acts of each are the acts of his fellow conspirators, and are binding upon that basis. Unless, therefore, the relationship is such as to make them all principals, none are affected, except the party whose acts or admissions are in question. When the appropriate relationship is shown, then may the acts and utterances of each be shown as the acts and utterances of all. 3 Wigmore, Ev. § 1797; 15 Am.Law Rev. 80. The common expression of the books seems to be that "those declarations only are admissible which are made by a conspirator during the existence of the conspiracy, and in furtherance of it." Underhill, Crim.Ev. § 493. Greenleaf says that the acts and declarations must "be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of its objects." 1 Greenl.Ev. (16th Ed.) § 184a.

Now, it is argued that what Huston said and did in Portland was prior to the formation of any conspiracy between the parties concerned in the theft. But is the premise well founded? It is not material at what particular time any one entered into the conspiracy. It is enough to know that he was a common conspirator. The acts or declarations of one or more of the conspirators are sometimes admitted before sufficient proof is given of the conspiracy. This rests, however largely within the discretion of the trial...