Ex Parte Hayes , 6 Okla. Crim. 321 ( 1911 )

Upon the trial of this cause, counsel for the petitioners objected to the introduction of the letter testified to by the witness Palmer as having been found at the house of the petitioner Hayes, upon the ground that it could not in any event be considered as evidence against the petitioner White. It was insisted in argument by the Assistant Attorney General that this letter was competent evidence against both of the petitioners, upon the ground that the evidence in the case established the fact that this crime of murder was not committed alone in a conspiracy to rob the mercantile establishment of Seikel at McLoud, but that the robbing of such establishment was only one act in a general conspiracy to rob similar establishments all over the state of Oklahoma, and that such general conspiracy, formed prior to the attempted robbing of the McLoud mercantile establishment, did not cease with the killing of Arnett, but continued in the minds of these defendants up to the very hour of their arrest, and that this letter was clearly admissible for that reason against both. In other words, the conspiracy formed between Hayes and White and those who may have operated with them was general in its nature, extremely comprehensive in its scope, of which general conspiracy the robbing of the Seikel mercantile establishment at McLoud was only an incidental part, and that the letter was also admissible as showing the intimate relationship existing between petitioners.

We think that the position assumed by the Assistant Attorney General is sound in law. Where two or more persons combine together for the purpose of accomplishing some unlawful act, every act and declaration of each of such persons in pursuance of the original concerted plan and with reference to the common object is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each one of them. In other words, every person who enters into a common purpose or design is in law held to be a party to every act which may be done by any of the others in furtherance of such common design. See volume 1, Greenleaf on Evi. (16th Ed.) § 184.

"A conspiracy makes each conspirator liable under the criminal law for the act of each other conspirator done in pursuance of such conspiracy." (Volume 2, Wigmore on Evi. sec. 1079.)

The only question as to the admissibility of this evidence against petitioner White is as to whether or not there is any evidence in the record tending to show a conspiracy between the two petitioners to rob safes, as contended for by the Assistant Attorney General. In volume 2, Wharton on Evi. § 1205, we find the following:

"When a conspiracy is shown to exist, which is usually inductively from circumstances, then the declarations of one conspirator in furtherance of the common design, as long as the conspiracy continues, are admissible against his associates, though made in the absence of the latter. The least degree of concert orcollusion between the parties to an illegal transaction makes theact of one the act of all."

See, also, Phillips v. State, 6 Tex. App. 380 [6 Tex. Crim. 380]; Hannon v. State, 5 Tex. 549.

In the case of Starr v. State, 5 Okla. Crim. 460, 115 P. 356, this question was passed upon by this court as follows:

"Slight evidence of collusion is all that is required. 2 Rice on Evd. 865, § 333; 1 Greenleaf on Evi. (13th Ed.) § 111;Anarchist's Case, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320; Price v. State, 1 Okla. Crim. 358, 98 P. 447."

While there is no direct testimony of the existence of a conspiracy between petitioners as contended for by the Assistant Attorney General, and while it is true that the circumstances testified to in behalf of the state, if taken alone and simply by themselves, would have but little strength, yet, when all these circumstances are taken together, we are satisfied that this letter is admissible in evidence as against both of the petitioners. It has been expressly decided that written correspondence and entries made in books and other documents by one conspirator, having reference to the common design of the conspirators, are admissible in evidence against a co-conspirator. See Carter v. State, 106 Ga. 376, 32 S.E. 345, 71 Am. St. Rep. 262; State v. Cardoza, 11 S.C. 195; Bloomer v.State, 48 Md. 524. The conspiracy between petitioners would constitute one of the strongest possible motives for the killing of Arnett.

It is the theory of the state that this murder was committed in pursuance of a system or scheme of the petitioners to rob various safes in the state of Oklahoma, and especially in Pottawatomie county. In support of this theory, the state has introduced in evidence the fact that one of the petitioners, Hayes, was, at the time of the commission of this crime, and had been for some time prior thereto, an employee of the firm known as the Conger Safe Company, of Oklahoma City, Okla.; that said Hayes was an expert as to the combinations of safes; that as such employee he had obtained possession of a description of the combinations of numerous safes throughout the state of Oklahoma, which had been disposed of to merchants and bankers by said safe company during the time of said Hayes' employment. This is a legitimate inference to be drawn from the fact that Hayes had in his possession, at the time of his arrest, a large ledger containing the combinations of over 150 safes; also concealed on his premises in Oklahoma, at the time of his arrest, were found some memorandum books, and in one of these the combination to the safe of the Seikel Mercantile Company, at McLoud, which safe had been bought from the Conger Safe Company, at Oklahoma, and which safe was in the building to which an entrance had been attempted by the men who murdered Arnett. In connection with this, it is well to note that the petitioner White had been repeatedly seen in Hayes' company on the streets of Oklahoma City at various times prior to his arrest in the month of September, 1911.

There can be no doubt that the purpose of the men who committed this crime was to burglarize the store of the Seikel Mercantile Company, at McLoud. At the time that they were discovered, this purpose had not been accomplished. It was therefore not necessary that the men who murdered Arnett, the night marshal, should do it for the purpose of concealing a crime, so some other motive must have been controlling. To our minds, the motive is apparent from this record. It will be noted that the accused White had been a resident of the town of McLoud, well knowing its places of business, and doubtless acquainted with its citizens. It also appears from the record that the town marshal, Arnett, had for several years been a resident of McLoud, and was well and widely known to all the people of that community. The accused White was the only person who did the shooting, and that this shooting did not occur until after the accused Hayes had passed out of the building in front of him. It is therefore reasonable to infer that as soon as the lantern was brought up, as the witness Bowman testified it was, to a position where the features of White could be seen that they would have been recognized by the deceased. The deceased was standing in the light of the lantern, and therefore could be recognized by a person coming from the cellar before the deceased could distinguish the features of such person. The testimony shows that the last man who came out of the cellar had his face turned from the deceased as he came up, looking west, and that as soon as he got out of the cellar he immediately turned toward deceased and began firing. This is a most significant circumstance. It shows that this man recognized deceased, and avoided recognition by the deceased until he was ready to fire the fatal shot. The excuse that they were in the building hunting for a place to sleep, given by Hayes as he stepped out, would not be believed by Arnett, who knew White, and knew that he had a home in that county and did not need a place to sleep. The inference, therefore, is that White, having been discovered by Arnett in the act of burglarizing a store in a community where he was well known, found that the only means of escape was to kill the night marshal, and thereby forever close the mouth of the only man, except Hayes, his companion in crime, who could ever produce evidence of positive identity against him. The record shows that both men were strangers to the witness Bowman, who had moved to McLoud after White had left there.

The only eyewitness to this tragedy yet produced is Bowman, and his testimony, taken in connection with the inferences legitimately to be drawn from the other facts and circumstances surrounding this case, points directly to the guilt of Hayes and White. He describes the men that were seen by him there that night. In height and age, and practically as to weight and features, his description tallies with the description of Hayes and White. He says that he cannot positively identify them as the men he saw there that night. It would seem preposterous that any man could positively identify two total strangers, and the fact that he does say that he cannot positively identify them adds weight to his testimony, instead of detracting therefrom. It is also in evidence that the tracks of these two men leading away from the place of the crime were accurately measured, and that the tracks of White and Hayes made in the soil at Tecumseh after their arrest were also measured. The larger footprints at the scene of the crime and leading away therefrom tally exactly, perfectly, with the measurement of the footprints of White as he made them in the soil at Tecumseh. As to Hayes, the witness testified that as to general appearance of tracks they were similar, but that from the measurement made, from the best of his opinion, there was a slight difference in the length, less than a quarter of an inch. The tracks at the scene of the crime were followed for five miles through the alleys and streets to the edge of the town, and then along highways and through the fields of cotton, etc., onto a highway crossing a railroad, where they disappeared entirely, and right along this highway was noticed the track of an automobile; and these tracks that led away from the scene of the crime led in the general direction of Oklahoma City, the home of Hayes, and the place where White had been seen frequently in Hayes' company on several occasions prior to his arrest.

It is also in evidence in this case that the man who came up out the basement first had a very peculiar shrug or affection of the shoulders, which was described by the witness Bowman, he saying that he had never noticed any action similar to that in any man; and this same witness says that when he noticed Hayes after his arrest at Tecumseh that he noticed a shrug or affection of the shoulder, and straightening up, that impressed itself upon his mind at the time this man came out of the basement. He says that these actions were alike.

Besides that, there is evidence in this case that was found at the home of Hayes at the time of his arrest (the record disclosing that Hayes and his wife lived at 135 West Fifth street, in Oklahoma City); this evidence being a letter, which is quoted in full in the synopsis of the testimony, supra. The letter was typewritten and unsigned. It was addressed to somebody by the name of Harry, as it starts out, "Dear Harry," and whoever that Harry was must have lived at Wanette, because at the bottom of the letter appeared the following: "How big is Wanette, and what towns are close around there?" This, taken in connection with the stipulation that White lived at Wanette, leads to the legitimate inference that Hayes was addressing White, and especially is this true since they had been seen together on various occasions in Oklahoma City, and the letter itself is unexplained. The entire testimony in this case sustains this view.

The state omitted to prove on the examining trial just when the arrest of Hayes was made, which should by all means have been proved, as it is a material fact in the case in connection with the letter which was offered in evidence; but this omission has been largely cured by the evidence of George Bowman to the effect that two or three weeks before the trial he saw the petitioners at Tecumseh, after their arrest. This trial began in the justice court on the 9th day of October, and if for the three weeks preceding this time they were in jail at Tecumseh then Hayes' arrest must have taken place about the date of the letter found in his home, which strongly indicates that it had just been written, but that Hayes had not had time to mail it. As before stated in this opinion, no one circumstance testified to by the witnesses against the petitioners would be sufficient to prove their guilt. In fact, each of these circumstances standing alone might be entirely consistent with innocence, but when they are all taken and combined together the conclusion is irresistible, to our minds, that these petitioners are not entitled to be discharged. While to a very limited extent a false consistency of circumstances may be constructed, yet experience teaches that this is almost impossible where there are a considerable number of circumstances involved.

We think that the application of the chain theory to circumstantial evidence is improper. No chain is stronger than its weakest link, and will never pull or bind more than its weakest link will stand. With its weakest link broken, the power of the chain is gone; but it is altogether different with a cable. Its strength does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore think that it is erroneous to speak of circumstantial evidence as depending upon links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands, and all of the facts relied upon should be treated as a cable. Taking all the circumstances in this case in connection with the variety of sources from which they are derived, we do not see how they can be harmonized upon any other theory, save that petitioners are guilty of the crime charged. Petitioners are therefore remanded to the custody of the sheriff of Pottawatomie county to await trial on the charge now pending against them.

ARMSTRONG and DOYLE, JJ., concur.