State v. Thompson , 69 Conn. 720 ( 1897 )

Hall, J.

The information charges the accused with the offense of conspiracy. This is a misdemeanor at common law; 2 Wharton Crim. Law, § 1342; 2 Swift’s Dig. 357; State v. Setter, 57 Conn. 461; and as such is punishable under §1642 of the General Statutes fixing the penalties for offenses at common law. The essence of the offense charged is the unlawful combination between the defendants, and not the accomplishment of the ultimate design of their agreement. 8 Greenleaf's Ev. § 91; State v. Wilson, 30 Conn. 500, 507; State v. Bradley, 48 id. 535, 549. The confederation becomes an offense, either because of the unlawful object to be effected, or the unlawful means to be employed. State v. Glidden, 55 Conn. 46. The agreement to act in concert for the attainment of the fraudulent purpose, is susceptible of proof in different ways: There may be direct evidence of the actual meeting and agreement to pursue the common object. The joint participation of all the persons charged, in the acts by which the common purpose is to be accomplished, may be shown by direct evidence. The combination may be established by proof of the admissions of each of the accused conspirators who are parties to the action, made either during or after the accomplishment of the common purpose; proof of each admission being received in evidence only against the person making it. It may be proved by circumstantial evidence, by proof of the separate acts of the individuals and of circumstances from which the illegal confederation may be inferred. From the nature of the offense itself, such corrupt agreement of the parties, entered into in secret, can only in exceptional cases be established in any other manner. 3 Greenleaf’s Ev. § 93; 1 Taylor on Ev. (8th ed.) Part 2, § 591; 2 Wharton, Crim. Law, §§ 1398 and note, 1401; 2 Bishop on Crim. Procedure, §227; Reg. v. Brittain, 3 Cox C. C. 76; State v. Spalding, 19 Conn. 233, 237.

It is undoubted^ the rule that evidence which in the opinion .of the court is sufficient to establish prima facie the existence of the conspiracy, should be first presented, before proof is received of the acts and declarations of the individual conspirators as affecting others than those whose acts and declarations are proved. But the order in which such proof should be presented is a question within the discretion of the trial court. 1 Greenleaf’s Ev. § 111; 3 id. § 92.

Of the questions raised by the reasons of appeal, but two are discussed in the brief of defendants’ counsel. These are, first, the ruling of the court admitting, against the defendants’ objection, proof of the acts and declarations of F. D. Thompson, in pursuance of the purpose of the alleged conspiracy, and in the absence of E. C. Thompson ; and second, the ruling at a later stage of the trial that the State had presented such prima facie proof of a combination between the defendants as rendered such acts and declarations of each, made in the absence of the other, admissible against both.

The defendants contend that when the first ruling was made no evidence of the alleged conspiracy had been adduced; that there was no urgent occasion for reversing the usual order of proof, inasmuch as the State’s Attorney had said that he had other evidence of the conspiracy which he proposed to introduce later, and that the court in making said ruling held that the declarations of one conspirator were competent evidence to establish the conspiracy.

What evidence had been offered prior to this ruling, what the precise ruling of the court was, and upon what grounds it was made, we are left to gather from what is apparently a part of the stenographer’s record of the proceedings in the trial, incorporated in the finding, including questions and answers of the witness Byrd, remarks of the judge, and objections and arguments of counsel. A direct finding upon these points would have been much more satisfactory. But, as we interpret the record before us, evidence had been introduced before the ruling under consideration was made, of an interview in Connecticut between Byrd and F. D. and E. C. Thompson, and of statements made by E. C. Thompson in the presence of his brother F. D. Thompson, which clearly tended to prove the combination between them. Again, as we understand the record, the attorney for the State did not inform the court that he was in the possession of evidence independent of the acts 'of the parties, to establish the conspiracy, but that he should rely, in proof of the combination, upon a narration by the witness of the entire transaction as it occurred, showing the separate acts of the two defendants, and should claim that from the acts of each, and the circumstances surrounding such acts, the combination of the accused persons should be inferred. Nor do we think it can fairly be said that the court held that the declarations of one of the conspirators was competent evidence to establish a combination between the two, in the sense that such acts and declarations of one could be sufficient prima facie evidence of the combination of the two.

The extent of the ruling, as we read the finding, was that the State might prove the separate acts ; not of one alone, but of each of the two defendants, including the false representations made by each in carrying out the alleged common design (and such representations are themselves acts), as furnishing facts from which it could be inferred that they were acting in concert to defraud the Bjn-ds. The State proposed by the evidence offered, to show that F. D. Thompson exchanged the land of his brother E. C. Thompson, which was of very little value, for land of the Byrds which was of very considerable value; that to effect such exchange he, in the absence of his brother, made the false representations described in the information; to further prove separate acts of E. C. Thompson and declarations made by him to Byrd, showing his knowledge and approval of the acts of his brother and his participation in the fraud, and to ask the jury to find from such facts and circumstances that the defendants had conspired together to accomplish the fraud, as charged in the information. This was a legitimate way of proving the existence of a conspiracy ; see the authorities cited above. Proof of the acts and representations of F. D. Thompson was one step in establishing the conspiracy. As the acts and .declarations of E. C. Thompson showing his knowledge and approval of the acts of his brother were necessarily subsequent in point of time, they might properly be made so in the order of proof; but this, as we have said, was wholly discretionary with the court.

The second ruling complained of, namely, that the State, at the time this ruling was made, had so far established the existence of the conspiracy as to render admissible as against both defendants, acts and declarations of one in the absence of the other, made in furtherance of the object of the conspiracy, was proper. The question is always one within the province of the court to decide. 3 Greenleaf’s Ev. § 92; Cowles v. Coe, 21 Conn. 220, 234; Knower v. Cadden Clothing Co., 57 id. 202; Burke v. Miller, 7 Cush. 547. The court in making such a ruling does not assume to pass upon the adequacy of the evidence to establish the conspiracy; that question is left for the jury to decide. Proof of facts which conduce to show the conspiracy will justify the admission of evidence of the acts and declarations of the several conspirators. State v. Spalding, 19 Conn. 233; Gardner v. Preston, 2 Day, 205. We think the evidence detailed in the finding not only conduced to establish the alleged conspiracy, but was quite sufficient to warrant the jury in finding the fact proved.

We refrain from discussing several of the reasons of appeal, which have not been referred to by defendants’ counsel in their argument or brief.

There is no error.

In this opinion the other judges concurred.