State v. Rand , 33 N.H. 216 ( 1856 )

Pereey, C. J.

Our statute, which authorizes an accessary to be tried and convicted either before or after the conviction of the principal offender, does not undertake to introduce any new rule of evidence. When the accessary is tried before conviction of the principal, the guilt of the principal is a material fact for the prosecution to establish, and must be proved by competent evidence. The principal is not a party, and his admissions or declarations cannot be received against the accessary, who is on trial. In this case the confessions of John W. Rand, the principal, would not be competent to prove any part of the case against the defendant, who was tried as accessary. 1 Russell on Crimes 42.

Evidence of certain suspicious acts and conduct of the principal after the commission of the offence, and not in presence of the defendant, was admitted on trial. If this is to be regarded merely as confessions of John W. Rand that he was guilty, it was not competent on trial of the accessary.

The case does not show in what the suspicious act and conduct of John W. Rand consisted, though it is stated in argument that they consisted in attempts to escape, and in disguising his person; nor does the bill of exceptions fix with exactness the time to which this evidence applied, though the arrest appears to have been made in the forenoon of the day after the offence was committed, and the suspicious acts and conduct to have been before the arrest. The bill of exceptions contains the case of the defendant, as drawn up and presented by him, and we are not at liberty to infer that any circumstances existed not stated in the bill, to explain the suspicious acts and conduct of John W. Rand. We must understand that they were such as, taken by themselves, had a natural connection with the commission of the offence, and tended fairly to show that John W. Rand was guilty, because his conduct was such as a man guilty of the offence would naturally pursue, and such as would be unusual and extraordinary in one innocent of the crime.

The acts and conduct of a defendant, preceding the commission of an offence, leading to it and directly connected with it, such as his examination and inspection of the place, and his preparation and possession of the means and instruments used in the commission of the crime, are competent evidence to prove his guilt. And such evidence is not in the nature of an admission or confession, for no crime has then been committed. And so what naturally and usually follows immediately on the commission of a crime — the act of flying and escaping from the place, concealment and disguise of the person, and other acts and conduct of the like character, such as, in themselves, naturally imply connection with commission of the crime — are evidence of guilt, not so much in the nature of confessions and admissions, as because they are the usual and habitual concomitants of the crime on trial. The transaction investigated on the trial, the res gestee, consists, not merely of the direct criminal act, which constitutes the legal offence; the necessary preparations for the perpetration of the crime; the arrangements for escape; the act of escaping; concealment and disguise of the person, and other similar acts and conduct, are all parts of the transaction, such as common experience shows naturally belong to the crime, and are habitually connected with the commission of the offence. In this point of view we think the acts and conduct of John W. Rand, immediately following the -commission of the offence, as stated in the bill of exceptions, were competent evidence to prove his guilt on trial of the accessary.

If the suspicious acts and conduct had been long after the crime was committed, and after John W. Rand had been accused as the guilty party, the case would have presented a different question. Rut the evidence does not extend beyond the forenoon of the day after the offence was committed. At that time no accusations appear to have been made against John W. Rand, and the case does not show that he had the means of knowing that the crime had been committed, unless he had committed it himself.

The paper stating the amount of cash in the bank the jury would be at liberty to presume was in the hands of John W. Rand before the bank was robbed, though found on him after-wards. If so, it would be evidence that he had furnished himself with information that the money, which was afterwards stolen, was in the bank. Where and how could he obtain the paper, and for what purpose, between the time when the bank was broken open and his arrest on the next day ? To ascertain the probable amount of plunder would be one of the arrangements for the commission of the offence. In this view we think the evidence was competent.

There were two out-door entrances to the building in which the Savings Bank was kept, one leading to the rooms occupied by the Merrimack County Bank, the other to the rooms of- the Savings Bank and other parts of the building. All the rooms except those occupied by the Merrimack County Bank, as their banking rooms, were leased and occupied by tenants. The part occupied by the Merrimack County Bank was separated from the rest of the building by a partition, and had no connection with the other parts, except by the other outer door.

On this state of facts the Savings Bank had exclusive possession of their rooms for them bank, and entered them by an outer door, which was used by them in common with the occupants of other rooms in that part of the building. The Merrimack County Bank had no possession or control over this common entrance. The possession by the Savings Bank of their rooms was as exclusive and independent as if they had occupied the whole of a separate building, and their right to use the common out-door entrance in connection with their rooms, as perfect and complete as if that entrance had led to no other rooms; and their rooms were in fact and substance as much their bank as if they had hired and used the whole of a separate building for the same purpose, and we think were properly described in the' indictment as their bank. 1 Russell on Crimes 817.

Most of the authorities on this question relate to burglary at common law for breaking and entering a dwelling-house in the night time, in which the essence of the crime is the violence offered to the dwelling-house ; and the rule that where there are several occupants of a house, it must be described, in an indictment for burglary, as the house of the general owner, would seem to be limited to cases where the owner dwells in part of the house. His mere occupancy of a part for another purpose than a dwelling-house will not prevent another part, exclusively occupied by a tenant, from being described in an indictment for burglary as the dwelling-house of the tenant. 2 East Cr. Law 506; 1 Russell on Crimes 817.

And where the general owner merely occupies some part of a building as a place of business, and does not inhabit or dwell in the building, his occupation, in reference to the statutory offence of breaking and entering the building, does not differ from a like occupation of another part by a tenant.

Where there is one common out-door entrance to a dwelling-house, though there may be several occupants of different parts, the law regards it as one dwelling-house. The peculiar protection which the law affords to the dwelling-house does not extend to the interior partitions and doors, but is confined to the outer doors ; and where the owner dwells in part of a house, which has an out-door entrance used in common by him and the occupants of other parts, the law regards the whole house as his, and requires it to be so described in an indictment for burglary. The reason of this rule would not seem to apply where the owner and different tenants have a like occupation in different parts of a building not occupied as a dwelling-house.

The objection that the defendant was tried on the two charges contained in the counts of the indictment, is not insisted on and cannot prevail.

The exception to the grand juror was known to the defendant and one of his counsel before the trial, and should have been taken then, if it was intended to insist on it, and must now be considered as waived. Rollins v. Ames, 2 N. H. 351; Fenalty v. The State, 7 English 630.

Regularly, an objection to one of the jurors that found an indictment, should be taken by plea; and such plea is in the nature of a plea in abatement; it does not answer to the charge made by the indictment, but declines to answer it on the ground that the charge is not legally made. Sir William Withipole’s Case, Cro. Car. 134; Bacon’s Ab. (Juries, A.)

The court give no time for pleading such a plea, and it seems the better opinion that no exception against an indictor is allowable, unless the party takes it before trial. Bacon’s Ab., Juries, “ A.” If the objection is not made at the proper stage in the proceedings, it must, as in other cases, be considered as waived. And so as to the exhibition of burglar’s tools, the objection should have been made at the trial, and, not having been made, was waived.

Judgment affirmed.