Heine v. Commonwealth

Mr. Justice Gordon

delivered the opinion of the court,

We have no doubt that the declarations of Weill as detailed by Edward C. Holmes and others, made, as they appear to have been, after the relations between himself and Heine had been dissolved, were improperly admitted. The declarations of a conspirator are, of course, always evidence against himself, and they are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions and as such may properly be admitted; but when not made during the progress of the fraudulent scheme but afterwards, and, as in this case, in a mere rehearsal to a third party of what has previously been done, they are not evidence: 3 Chit. Crim. Law 1143.

Furthermore, the learned judge of the court below committed an error in saying to the jury: “ If a man is guilty, his previous good character has nothing to do with the case; but if you have doubt as to his guilt, then character steps in and aids in determining that doubt.” The effect of this was to give the evidence of good character no weight whatever, for if the other testimony left, in the minds of the jury, a reasonable doubt of the defendant’s guilt, this of itself] without more, entitled him to an acquittal. Evidence of good character is not a mere makeweight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may, of itself, by the creation of a reasonable doubt, produce an acquittal: Whart. Crim. Law, sect. 643.

We next turn to the exceptions taken to the indictment. That instrument, in substance, charges as follows: that the defendant, Arnold B. Heine, intending to cheat and defraud H. B. Olaflin & Co. and S. F. Jaffrey & Co. of their money, goods, &c., and prevent them from obtaining payment of their just claims, together with one Henry Weill, wickedly and deceitfully, did then and there falsely and maliciously conspire, combine, confederate and agree, to and with the said Henry Weill, to cheat, defraud, &c.

The objection is that Heine alone is charged; that a fraudulent conspiracy is in its nature joint, and that one alone cannot be guilty of this offence. This is strictly true; nevertheless, one of two or more conspirators may be separately indicted, tried and convicted: 3 Chit. Crim. Law, v. 1141. Therefore, that Weill has not been indicted with Heine can make no difference if it sufficiently appears, from the record, that he was a confederate. If, however, one can be separately indicted, how could he be charged other than the defendant has been charged in the bill before us ? To say that Arnold B. Heine, together with Henry Weill, did conspire, combine, confederate and agree to and with the said Henry Weill, to cheat, &c., is certainly a most direct and positive implication of two persons in the same crime. There surely can be no mistake, from the reading of this instrument, but that, in the commission of the misdemeanor charged, Weill was a fellow conspirator with Heine. It follows that this exception cannot be sustained.

The other objection that it does not appear in the bill of indictment, that the unlawful act intended was accomplished, has nothing in it. It has been repeatedly ruled that in order to render the offence complete, there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance, or in consequence of the unlawful agreement: Collins v. Commonwealth, 3 S. & R. 223; Commonwealth v. McKisson, 8 Id. 420.

Judgment reversed and a new venire ordered.