State v. Thompson

• Decision Date: 30 November 1897
• Citation: 69 Conn. 720,38 A. 868
• Court: Connecticut Supreme Court
• Parties: STATE v. THOMPSON et al.

38 A. 868

69 Conn. 720

STATE

v. THOMPSON et al.

Supreme Court of Errors of Connecticut.

Nov. 30, 1897.

Appeal from superior court, Litchfield county; Samuel O. Prentice, Judge.

Franklin D. Thompson and Edward C. Thompson were convicted of conspiracy to defraud, and appeal. Affirmed.

The information contained two counts charging the defendants with having, in July, 1896, at Colebrook, in said county, conspired between themselves to cheat and defraud, in the first count, William F. Byrd and Catherine Byrd, his wife, of Brooklyn, N. Y., out of a certain mortgage of $3,000, owned by said William Byrd upon land in New York state, and out of land in Brooklyn, N. Y., of the value of $2,000, belonging to Catherine Byrd; and in the second count, with having at said Colebrook, in September, 1896, so conspired to cheat and defraud the said Catherine Byrd out of certain land in Brooklyn, N. Y., of the value of $2,000, owned by said Catherine Byrd. The information charged that such conspiracy and agreement between the defendants was to so cheat and defraud the said persons, by inducing them to exchange their said property in the first count for certain land in said Colebrook belonging to said Edward C. Thompson and certain personal property of said Franklin D. Thompson, and in the second count for land in said Colebrook belonging to said Edward C. Thompson, "by the following false fraudulent, and wicked representations, pretenses, devices, and unlawful means," fully set forth in each count, which were to be made to said Byrds, and to said William P. Byrd as agent of said Catherine Byrd. Said alleged false representations, pretenses, etc., consisted chiefly in false representations to be made by said P. D. Thompson relative to the value of the property of the defendants to be given in exchange for that of the said Byrds, as to its character and the profitable uses to which it had been and could be put, the amount of personal property to be included in the exchange, the sums which the defendants had been offered for said property, and in showing to said Byrds certain false photographs of said property. The second count alleged the accomplishment of the design of the conspiracy set forth in that count. The first count contained no such averment. The defendants pleaded severally not guilty. The jury found the defendants not guilty upon the first count, and guilty upon the second count, as charged in the information. The punishment by fine and imprisonment in jail was not greater than that imposed by section 1581 of the General Statutes for obtaining property by false pretenses. Upon the trial said William P. Byrd testified to interviews and conversations with said P. D. Thompson in the absence of E. C. Thompson, in Connecticut and in New York; to conversations at an interview in Connecticut in the early part of the negotiations between himself and E. C. and P. D. Thompson together; to a conversation with E. C. and P. D. together after the exchange of property had been made; and to the false representations made and the means employed on said occasions as alleged in the information to accomplish the purpose of the conspiracy; and to admissions made by E. C. in the presence of F. D. Thompson, and in his absence, after the sale had been completed, as to his (E. C. Thompson's) connection with P. D. Thompson and with said transaction. To proof of the representations so made by P. D. Thompson, in the absence of E. C. Thompson, counsel for the accused objected, upon the ground that the evidence should first be offered of the existence of the alleged combination. The attorney for the state having stated that to establish the alleged conspiracy he should rely mainly upon proof of the separate acts of the two defendants, the court admitted said evidence, with the provision that, after the state should present its proof of the conspiracy, counsel for the accused might move to strike out the evidence of such admissions, and that the court should thereupon rule whether the state had presented such prima facie proof of the conspiracy as would render the declarations of one conspirator in furtherance of the conspiracy, made in the absence of the other, admissible against both. Counsel for the defendants excepted to said ruling. The state having thereafter offered evidence of interviews between said Byrd and E. C. Thompson and P. D. Thompson together, at which, among other things, the following statements were made, as appears by the record: "Mr. Franklin Thompson said: 'Oh, I am sorry I made this trade.' I [Mr. Byrd] said: 'Mr. Thompson, hold on, now; I am willing to trade back. I want my property back. I will give you $250 if you will trade back.' Mr. E. C. Thompson said: 'Mr. Byrd, he can't do it; it belongs to me. He is my agent. Frank is doing business for me. I gave Frank the money to settle with you, and he can't do anything with it; it is mine'"; and "the state having," as the record shows, "offered further testimony tending to show the existence of the conspiracy alleged and E. C. Thompson's participation in it, including deed and record evidence showing that the property transferred and conveyed by the Byrds in the transaction between the parties was all transferred and conveyed to said E. C. Thompson; that all the property conveyed to the Byrds in exchange therefor stood upon the land records in the name of said E. C. Thompson, and that he had a beneficial interest in it, together with his brother Franklin D.; that on September 27, 1896, said E. C. Thompson transferred said Mt. Vernon mortgage assigned to him by the Byrds to Henry Gay, of Winchester, and that on October 3, 1896, he conveyed the major portion of said Brooklyn property deeded to him by the Byrds to one John T. Connelly; and also tending to show that said transaction and exchange was fraudulent, and that as the result of it the said Byrds parted with property of considerable value in exchange for property of very little value,—the court announced that it was prepared to dispose of the objections which had been or might be made to the effect that the state had not prima facie established the existence of the alleged conspiracy, and therefore was not entitled to have evidence of the acts or declarations of one of the accused, claimed to have been done and made in the absence of the other, but pending and in the furtherance of the conspiracy admitted against the other, and ruled that such prima facie proof had been made, and that evidence of such acts and declarations already received or to be proffered would be admitted, to go to the jury against both the accused." Counsel for the defendants excepted to said ruling. The court excluded from the said last ruling, as against F. D. Thompson, the statements of E. C. Thompson made...