#### Hunter v. The Commonwealth.

June Term. 1850.

1. Criminal Law—Confessions of Accomplice—Admissibility*—Case at Bar.—Confessions or admissions of an accomplice in a felony, made after the commission and completion of the offence, are not competent evidence against a prisoner, even though a previous conspiracy and combination between the prisoner and the accomplice to commit the felony has been proved.

*2.*Same—Burglary—What Constitutes—Case at Bar.— The only covering to an opening for a window, is a cloth hung over two nails at the top, and loose at the bottom. Qilmbe : If the removing the ■cloth from one of the nails is a sufficient breaking .to constitute burglary.

Frederick B. Hunter was indicted for burglary in the Circuit court of Bee county, jointly with Thomas Hardy. There was also a count in the indictment charging Hunter with counselling, hiring and procuring the *said Hardy to commit the offence. The indictment charged the offence to have been committed on the night of the 23d of October 1848, by breaking and entering the house of Nancy Rogers, and taking therefrom some 1400 dollars in money, besides other things. It seems that Hardy was first tried, and that he was convicted.

On the trial of the prisoner, the proofs were, that the entry into the house was effected through an opening intended for a window, but to which there was neither sash or shutter; and that the covering over this opening was an old cloak hung at the top on two nails, one on either side of the opening, and loose at the bottom. This cloak was removed from one of the nails, and the end of the cloak was drawn through the opening.

The robbery having been discovered in the morning, and tracks of men near the house, and then of horses a little farther off having been found, several persons tracked the horses for twenty-one miles, until they came nearly to the house of the prisoner in the State of Tennessee. Here they found a horse whose footprints corresponded with those of one of the horses they had been tracing, and which had obviously been rode during the night. Near to the prisoner’s house too, Hardy was found and arrested. After the witnesses had detailed the facts as to the breaking, the pursuit to the prisoner’s house, the arrest of Hardy, and the subsequent arrest of the prisoner, the attorney for the Commonwealth proposed to introduce the confessions of Hardy made after his arrest, and in the absence of the prisoner. To this evidence the counsel of the prisoner objected, on the ground that no conspiracy between Hardy and the prisoner to commit the offence charged had been proved. The Court stated that it could not then determine from the evidence that had been heard, whether the foundation for introducing the confessions of Hardy was or was not, *then sufficiently laid, but that the evidence might be introduced; and when the examination of witnesses had progressed further, the Court would direct whether it should be excluded or not, if requested by the prisoner’s counsel. The witnesses thereupon went on to detail the confessions of Hardy made after his arrest and in the absence of the prisoner. These confessions shewed that the prisoner was not present when the robbery and burglary was committed, but that he was then probably at his house in Tennessee. And they only went to sustain the count against him, for advising, hiring and procuring Hardy to commit the offence.

Although the Court had reserved the question as to the competency of the confessions of Hardy, yet the question was not decided during the progress of the trial, nor was he called on to do so by the prisoner’s counsel; but as the jurors were about retiring to consider of their verdict, one of them enquired of the Court, whether they were to consider the statements of Hardy as evidence for their consideration or not. And then the Court replied, “that if the jury believed from the evidence they had heard, that there was a conspiracy proved to have existed between Hardy and the prisoner, to commit the offence charged against them in the indictment, then they were to consider all Hardy’s statements as proper evidence before them, and entitled to as much weight as if they were the confessions, admissions, or statements of the prisoner himself. But if they did not believe such conspiracy to be proved, they were to reject the statements of Hardy as no evidence against the prisoner.” To this proceeding and opinion of the Court the prisoner excepted.

The jury found the prisoner guilty, and fixed the term of his confinement in the penitentiary at five years; and the Court gave judgment accordingly, sentencing the prisoner to solitary confinement for one twelfth of his time. Whereupon he applied to this Court for a writ of error, which was awarded.

'^Grattan, for the prisoner.

*

Criminal Law—Conspiracy — Evidence — Admissibility of Declarations of Co-conspirator.—See, on this question citing' the principal case, Jones v. Com., SI G-ratt. 850, and *note*; Oliver v. Com., *77*Va. 594. See *note*to principal case in 56 Am. Dec. 121.

THOMPSON, J.,

delivered the opinion of the Court.

It is the unanimous opinion of the Court, that it was erroneous in the Court below to admit the confessions, admissions, or declarations of Hardy as evidence against the prisoner, even though a previous conspiracy and combination had been proved; because it appears from the bill of exceptions, that they were made after the arrest, and consequently after the commission and completion of the offence charged. 1 Greenleaf’s Evi. 268-9; Roscoe’s Crim. Evi. 38, 39. A majority of the Court deem it unnecessary, *328and therefore decline to express any opinion upon the sufficiency of the evidence certified, to establish such a breaking as to constitute the crime burglary, or upon any of the other questions presented by the prisoner’s petition and assignment of errors. The judgment must be reversed, the verdict set aside, and the cause remanded for a new trial, and the proper order for the removal of the prisoner, who is now confined in the penitentiary, to the county of Lee for trial.

FIELD, J. The prisoner was convicted of burglary in the Circuit court of Lee county, and sentenced to confinement in the penitentiary for five years, one twelfth part of which he was to be confined in a solitary cell thereof. Upon the trial, the confessions of Hardy, an accomplice in the perpetration of the crime, which were made after its commission, were given in evidence against the prisoner, which he objected to, and asked the Court to exclude. The Court declined deciding. the question then, and postponed it until all the testimony should lie heard. And after the testimony had been closed, the Court instructed the jury, ‘ ‘that if they believed from the evidence that the prisoner and Hardy were accomplices, (or had entered into a conspiracy *to commit the offence,) then they were to regard Hardy’s confessions as good evidence against the prisoner, otherwise not.” I do not remember the precise language of the instruction. The above is the substance of it. The jury rendered a verdict of guilty. The prisoner moved for a new trial, which was overruled, and a bill of exceptions signed, which sets out the facts proved upon the trial. I am of opinion that the Court erred in not deciding the question as to the admissibility of the confessions of Hardy. This was a question of law which it was the province and duty of the Court to decide, and not refer it to a jury. These declarations were improperly received as evidence against the prisoner. The confessions or declarations of an accomplice or confidant made when they were in the act of committing an offence, or when in its way of commission, can be received as evidence against all parties to the conspiracy. But after the commission of the act is complete and over, declarations subsequently made by an accomplice are good evidence against him only, unless made in the presence of his partners in the crime. I am also of opinion, that the facts set forth in the bill of exceptions do not amount to burglary. (See Lawrence’s Case, 19 Eng. C. L. R. 560.) For these three errors I think the judgment should be reversed, the verdict set aside, and a new trial awarded. Believing that the offence proved upon the trial does not amount to burglary, I deem it unnecessary to say anything about the non-residence of the prisoner, and his being absent from the State when the offence charged in the indictment was committed.

I will further remark, that so much of the sentence as requires confinement in a solitary cell of the penitentiary is irregular, the law upon this subject having been repealed.