State v. Pike , 51 N.H. 105 ( 1871 )

Bellows, C. J.

The declarations of Willey, which are objected to, were made about half an hour after the respondents had gone away, and Willey had returned.

If the concerted attack upon the house was ended at this time, their declarations had the character of a mere narrative, and were inadmissible.

If, on tlie contrary, Willey’s attempt to gain admittance at tliis time was in pursuance of- tlie common design, either by facilitating the entrance of the other respondents, or to enable him to harass the family, it might well be considered that the attack was still going on, and then Willey’s statements were admissible.

They were in fact received, as the case finds, upon the ground that the concerted attack upon this family was still going on, and did not terminate until Willey left, after making this statement and failing to get permission to stay all night.

The judge who tried the cause found, it would seem, that this last attempt of Willey to gain admission was a continuation of the common object, and unless the circumstances were such as clearly to negative such a conclusion, it must be assumed that the view of' the' court was correct, so far, at least, as respects the admission of the testimony in the first instance.

It would have been proper, however, to have submitted the question of fact to the jury, with instructions that, if they found the concerted attack had terminated when the respondents left, this testimony was to be laid aside.

As bearing upon the finding of the court on this point, it will be observed that Willey had before made substantially the same statement when the other respondents were present, and afterwards offered to Pike to aid him in the violence they had concerted; and there was reason to think that the last statement was equally insincere.

Upon the whole, we do not think there was error in assuming that the attack concerted by the respondents was still going on, so far as to receive the testimony of Willey’s statements and submit it to the jury with proper instructions, — which we must, in the absence of exceptions, presume were given.

If these declarations of Willey were a mere narrative of occurrences that were past, though by a person otherwise proved to be an accomplice, they would not be admissible to affect the others; but if made during the progress of the violence, and in furtherance of the common design, they would be admissible against all. The rule, indeed, was laid down in Rex v. Hardwick, 11 East 585, much more broadly, namely, that if persons are shown to be co-trespassers, the declarations of one, as to the motives and circumstances of the trespass, will be evidence against all who are proved to be so combined.

With the necessary qualifications that such declarations were made while the acts complained of were in progress, and not merely a narrative of a past occurrence, and that they were made in reference to the common design and perhaps in furtherance of it, the rule announced in Rex v. Hardwick is, we think, correct. 1 Phillips Ev. 94, and Cowen’s note, 2d vol. 176, note 179; 1 Greenl. Ev., sec. 111, and cases cited; Page v. Parker, 40 N. H. 62, 63, and cases; Lee v. Lamprey, 43 N. H. 13;—and this doctrine is in conformity with that of State v. Larkin & a., 49 N. H. 39.

Judgment on the verdict.