State v. Erwin

I concur. Without any intention of detracting from the painstaking care and conscientious labor which the opinion itself shows the author thereof has put into it, I feel impelled nevertheless to make some reservations and qualifications thereto.

Appellants argue that the indictment is insufficient in that it does not charge that there was an agreement between appellants and the operators of the places being conducted in violation of the law. The opinion sufficiently answers this contention by stating that it was unnecessary to charge such an agreement. But it goes on to state that that part of the charge which specifies that the defendants agreed among themselves and with "divers other persons to the grand jury unknown" indirectly charges an agreement between the city officials and said operators. Since the indictment naming specific individuals is good even though it may appear from the evidence that others not named also participated in the conspiracy in one form or another, I do not think we need hold that the operators were by implication included by the phrase "divers other persons."

It may well be that at some point in the trial the prosecutor may have to declare whether he is urging that certain persons unnamed as defendants are or are not parties to the conspiracy under the "catch all" phrase. He could hardly contend at one time that they were conspirators for the purpose of making their declarations evidence against other alleged parties to the conspiracy and at another time that they were not so in order to use them as witnesses not subject to the accomplice rule. And the court may be required to decide whether they have been proved prima facie conspirators. But certainly in testing the sufficiency of the indictment it is not necessary that after-revealed persons as conspirators should have been joined as defendants.

In considering the question of proof of the corpus delicti the opinion states that the agreement must be proved "without the aid of the admissions of the defendants themselves." However, I am of the opinion that admissions not amounting to a confession of the crime or at least of an essential element thereof may be used in establishing the corpus delicti. And certainly in this case such admissions were necessary to establish the conspiracy.

On this matter of proof of corpus delicti and corroboration of an accomplice's testimony the opinion sets out somewhat at length what the law is and how it applies to the present case. I think it recognizes that the principles of law regarding proof of corpus delicti and corroboration of an accomplice's testimony are entirely separate and distinct and should not be confused when determining whether the requirements of proof of corpus delicti have been met. There is nothing which prevents an accomplice's testimony from establishing the commission of a crime. And if the crime encompasses an agreement, certainly the agreement may be proved by the evidence of an accomplice who was or claims to have been a party to the agreement. That would be evidence of a verbal act. But the rule as to corroboration of an accomplice's testimony would prevent conviction without the corroboration required by the statute.

The restriction is that a defendant shall not be convicted by the testimony of the accomplice alone, but there must be corroborating evidence connecting such defendant with the offense. While extrajudicial confessions of an accused cannot be used to establish the corpus delicti as to him, there is no prohibition of using the testimony of an accomplice to show the commission of the crime. See Wigmore on Evidence and cases cited in main opinion. Having these principles in mind, it is not difficult to establish the existence of the conspiracy in the present instance and the connection of each defendant therewith.

While I concur in the holding that defendant Pearce's requested instruction 5 was properly refused, I am not prepared to concur in the statement contained in the prevailing opinion to the effect that even if the evidence

"is susceptible to the interpretation that there were more than one unconnected conspiracy, each of them was of the same kind as alleged in the indictment, and therefore the defendants, were convicted of the same kind of a conspiracy which took place within the same time and place alleged, and there was no prejudicial error in refusing to so instruct the jury."

Briefly, I cannot see how under the evidence of this case separate conspiracies — each supported by its overt act chargeable to its corresponding conspiracy or by overt acts common to all the supposed separate conspiracies — can be spelled out. The transactions involved here are so closely interwoven that any attempt to instruct the jury on the theory that they might be segregated into separate conspiracies would have revealed the impossibility of drawing any sort of line and would only have resulted in confusion. I think the State's case must stand or fall on the theory of one general conspiracy, but I think the evidence amply supports the existence of a general conspiracy.

As to the testimony of Kempner who stated that Stubeck told him that the money which Stubeck paid to Harmon was divided with Erwin and his crowd, the court's opinion discusses res gestae and declarations made in furtherance of the conspiracy and concludes that such statements were admissible. However, I have grave doubt as to whether the testimony of what Harmon did with the money was admissible under either the theory of declarations or res gestae. While the trial court may have discretion to admit testimony as to declarations made in furtherance of the conspiracy, such declarations would have to be made by one whom the independent evidence established as a conspirator. But I am not prepared to go to the extent of laying down a rule that a declaration not made in furtherance of the conspiracy or not accompanying and explaining acts done in furtherance of the conspiracy is admissible at the discretion of the court if it pertains to the conspiracy and is made during the period of the existence of the conspiracy. The United States Supreme Court cases do not go that far. They are really res gestae cases. The declarations considered in those cases, while not themselves in furtherance of the conspiracy, were contemporaneous with an act in furtherance thereof and served to explain or give color, meaning or complexion to that act. This feature that the circumstances or statements accompanying or surrounding an act must serve to explain, or give it meaning are ofttimes forgotten even by courts in the test of what is admissible as res gestae. See concurring opinion in State v. Rasmussen, 92 Utah 357,68 P.2d 176.

A statement which meets all the requirements of spontaneity so as to be the automatic utterance of the person who makes it has no purpose to serve and cannot be excepted from the hearsay rule if it is simply accumulative of other testimony and does not explain or give meaning to the act with which it is contemporaneous. The statement of Stubeck that he gave the money to Harmon gave meaning to the whole act of collection and explained its nature. It was not an act of Stubeck's initiative but an act part of a more comprehensive situation. But I doubt whether the statement as to what Harmon did with the money in any way explained or colored or gave meaning to Stubeck's acts of collection. Hence it must, if properly admissible, come under the rule which permits declarations, independently of whether they meet the test of res gestae. Declarations are bottomed on the principal and agent relationship. If in a conspiracy one party is acting for the others — that is in pursuance of their common business — and that party independently of his declarations has been prima facie proved a partner in the said business (conspiracy), his declarations are admissible against theothers. Of course if they contain the element of an admission as distinguished from what is known in the law of evidence as a declaration they are admissible as against the utterer regardless of whether they may be admissible as against others.

I am not prepared to agree that statements not in furtherance of the conspiracy nor contemporaneous with an act thereof and not serving to explain the contemporaneous act which they accompany may be admitted even at the discretion of the trial court simply because the utterer has been prima facie proved to be a conspirator and they are made during the period the conspiracy endured. Such would make the narrations of a loose-tongued prima facie confederate at some social gathering admissible as against his alleged conspirators. This seems to me a departure from the rule on which declarations in a conspiracy are based, to wit: mutuality in the enterprise.

While the tendency of the law is directed toward an enlarging of the number of exceptions to the hearsay rule (See Chapter VII of the Tentative Draft No. 2, Code of Evidence of the American Law Institute, submitted March 1941), it is doubtful whether, were that proposed Code the law of this state, Kempner's testimony of what Stubeck said Harmon did with the money would be admissible.

Under Rule 601 of the Tentative Draft such utterance would be a hearsay statement and therefore admissible only if it met the tests of Rules 606 or 607. Apparently it meets the tests of neither of these rules. The tests laid down in Rule 608 of the Tentative Draft are inapplicable because the utterance of Stubeck of what Harmon did with the money is not a hearsay declaration under Rule 601.

But I have not voted for a reversal even if the statement made by Stubeck of what Harmon did with the money was erroneously admitted. While I do not think the matter so inconsequential as not to have had its effect on the jury, I think considered in the light of the whole record it was not prejudicial error. Section 105-43-1, R.S.U. 1933, reads:

"After hearing an appeal the court must give judgment without regard to errors or defects which do not affect the substantial rights of the parties. If error has been committed, it shall not be presumed to have resulted in prejudice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment."

It is the duty of this court not only to determine whether error was committed but whether in view of the whole record the error could be said to have been prejudicial. Erroneously admitted evidence, if taken by itself or treated as if it were the only evidence before the jury, might be highly prejudicial but if taken in the light of other evidence, its significance to affect the final result might be comparatively slight. If we can say that the evidence, absent the erroneously admitted testimony, is such as to make it highly improbable that the jury would have come to a different conclusion we must affirm. One of the duties enjoined upon us is to measure the influence of the erroneously admitted testimony as compared to the whole testimony and if we can say that absent the former testimony the other evidence is so clear and convincing that the jury must have nevertheless come to the same conclusion we should not on account of the erroneous testimony reverse. I am satisfied even though the evidence of Stubeck's remark that Harmon divided with Erwin and his crowd had been omitted the result would not have been different. I therefore concur.