State v. Davis , 123 Me. 317 ( 1923 )

Cornish, C. J.

The respondent was indicted under R. S., Chap. 122, Sec. 12, tried and found guilty of receiving stolen goods. Four men were engaged in the larceny itself according to the testimony which is made a part of the bill of exceptions. These were Knox and Smith in one automobile, Warren and Murray in another, and the plunder consisted of hens and a calf taken from the Plisga place in Sidney. The contention of the State was that the respondent Davis received and paid for the goods knowing them to have been stolen, that he was, to use the technical language of the craft, the “fence” in the transaction.

During the course of the trial the State offered the following testimony from Murray, one of the self-confessed thieves, which was admitted by the presiding Justice subject to objection and exception.

“Q. After you left Israel Davis’ place ip Waterville on the first night and you were, bound for the John Plisga place in Sidney, what, if anything, did George Warren tell you about conversation that he had had with Israel Davis about Israel Davis sending him down there?

“A. He told me that Israel Davis told him where to go.

“Q. He told you that Israel Davis told him where to go for what purpose?

“A. Well,, he didn’t say .for what purpose; he said he told him where the hens were.” •

The respondent objected to this evidence oh the ground that it was mere hearsay, the respondent not being present at the alleged conversation. The State offered it on the ground that a conspiracy existed among the four thieves and the respondent and therefore any admissions or declarations by -one of- the conspirators were admissible against the others.

The exception must be sustained.

The State relies upon the recent decision in State v. Vetrano et als, 121 Maine, 368. The offense charged in that case Was conspiracy to wound, maim and injure one De Sarnb, and the indictment was brought under R. S., Chap. 128, Sec. 24. Conspiracy was the gist of the crime and the rule as laid down by the court in that class of actions was “that the acts and words of all parties alleged to be participants in the conspiracy', as well as all other testimony, are admissible in the discretion of the court for the purpose of proving the fact of conspiracy, but are not to be taken into consideration against any one of the parties concerned until, from the evidence thus.admitted, the fact of a conspiracy is proved; after which the acts and words of each co-conspirator, whenever done or whenever said, in furtherance of the common purpose are admissible against all the alleged conspirators upon the ground that the act of one is the act of all.” Applying this rule the court in that case held certain letters admissible which were dictated by one of the conspirators, the fact of conspiracy being fully established.

That case however, is not relevant in the case at bar. Here the indictment is not brought against the five for conspiracy to do an unlawful act, but against one for doing an unlawful act. A conspiracy is neither alleged in the indictment nor substantiated by the evidence. The charge is simply that of receiving stolen goods and to prove it the State was allowed to introduce the testimony of Murray that Warren told him that Davis told him (Warren) where to go for the hens. This is a striking illustration of hearsay evidence and was clearly inadmissible.

If the State desired to prove the compromising statement of Davis it could and should have done so by introducing Warren himself, the party to whom the statement is claimed to have been made. He was within the jurisdiction of the court, in safe keeping in the nearby County jail, and therefore readily available. His incarceration afforded no excuse for his nonproduction. 2 Wigmoro Ev., Section 1407.

In view of the weakness of the other evidence in this case by which guilty knowledge on the part of Davis was sought to be shown, we cannot regard the admission of this testimony of Murray as harmless error. It went to the very pith of the accusation and without it the case would have been rather doubtful.

The entry must therefore be,

Exceptions sustained.