#### THE STATE *vs.*GEORGE, A SLAVE.

The acts and declarations of an accomplice are evidence when they are pare of the *res gesta,*and done in furtherance of the common design.

But to make the acts or declarations of another, evidence against a prisoner, a conspiracy or common design between them must be established.

Appeal from the Superior Court of Law of Granville County, .at the Spring Term, 1847, his Honor Judge Manly presiding.

The prisoner was separately tried upon an indictment, in which he was charged as principal, and Mary Meadows as accessary before the fact, with the murder of *322James Meadows. Ia the course of the trial, a witness for' the State, having been examined as to some other matter, was then interrogated by the Solicitor for the State, as to the acts and declarations of Mary Meadows', tending to show hostility to her husband, and an intention to cause some great bodily injury *to*be inflicted upon him. This was objected to by the prisoner’s counsel, but the Solicitor stating at the same time, that he then intended to call witnesses to prove a conspiracy between Mary Meadows and the prisoner, it was admitted by the Court.

Evidence was then introduced to shew a guilty con-nexion between the prisoner and Mary Meadows, which it is not thought necessary to repeat.

In another, and subsequent stage of the cause, after a recess, and before re-commencing the examination of witnesses, the prisoner’s counsel, addressing the Court, remarked, they supposed it was unnecessary to repeat the objection already made, to evidence. To which the Court replied, it was deemed unnecessary ; that objection would be oonsidered as made to all testimony of the same kind. If they desired, however, to make a point as to the admissibility of other evidence upon other grounds, it ought to be mentioned.

No exception is taken to the instructions given to the jury. There was a rule for a new trial, on account of improper testimony. Rule discharged. Judgment and appeal.

*Attorney General,*for the State.

*Badger, E. G. Reade,*and *Gilliam,*for the defendant.

' Nash, J.

The prisoner is indicted, together with Mary Meadows, for the murder of James Meadows, her husband, the first as principal, and" the second as accessary before the fact. The prisoner was tried alone. On the trial a witness was called to state, “acts and declarations *323of Mary Meadows, tending to show hostility to her husband, and an intention to cause some great bodily injury to be inflicted on him.” Objection being made, on behalf of the prisoner, the prosecuting officer stated, he intended to introduce witnesses to prove a conspiracy between the prisoner and Mary Meadows. The evidence was admitted by the Court. *What*these acts were, or what wrnre the declarations of Mary Meadows, the case docs not inform us, any further, than that they *tended*to show, the state of *her*feelings towards the deceased. An accomplice is certainly a competent witness, either for or against a partner in the perpetration of the offence, if he be not a party to the record ; and if he be, his declarations will be heard, under certain restrictions. A simple bald declaration will not be received, unless it be, in itself, an act; as in treason, to make it evidence, it be accompanied by an act, of which it is explanatory; for which act. his accomplices are responsible ; and the declaration must be a part of the *res gesta,*and be done in furtherance of the common design. *The American Fur Company*v. *United States,*2d Peters 364. *Gooding’s case,*12 Whe. 460, 1 Phil. on Ev. 414, 4th, Haw. P. C. Book 2nd, ch. 46, sec. 34. *Cabiness*v. *Marlin and others,*4 Dev. 110. *1st Greenleaf’s Ev.*345. *State*v. *Poll.*& *Lavinia,*4th Haw. The declarations and acts of Mary Meadows had none of the qualities, rendering them evidence against the prisoner’. The acts, as far as the case discloses, were not such as ho was answerable for, nor were they done in furtherance of the common design, to wit: to murder James Meadows. They were descriptive, simply and entirely, of her feelings towards her husband, without pointing in the most remote manner to the prisoner. For this reason, if there was no other, I should send the case back to another jury.

But there is another, and still more formidable objection to the sustaining of the verdict, in this case. The prosecuting officer, when lie offered in evidence these acts and *324declarations of Mary Meadows, was sensible, that, at that State of the case, they were not admissible ; to make them so, he declared his intention to provea conspiracy, and it js to be presumed, such a conspiracy, as would authorise their introduction. The prisoner was on trial for the murder of James Meadows, and the conspiracy to be proved, was one to effect that crime ; and so the Court must have understood it. Does the *case*show', that *any*conspiracy was proved ? It states, “ that evidence was then introduced, to show a guilty connexion, and that it was not thought necessary to go into particulars.” It appears, that, after the introduction of this testimony, the Court took a recess, and upon resuming the trial, the prisoner’s counsel renewed his motion j or, rather, informed the Court, that he had not abandoned it, and the evidence was not withdrawn from the jury. Whatever dopbt might rest upon the admissibility of the acts and declarations of Mary Meadows, as proved, coupled with evidence of a conspiracy, to my mind it is perfectly clear, that, as the case appears here, they were not admissible. The words, “guilty connexion,” have no definite meaning, as descriptive of any particular offence. The combination of a parcel of smugglers is a guilty connexion; so, to rob, or to commit an assault or battery, or to strike for higher wages, all these, are guilty connexions, punishable bylaw. But the words, in common parlance, when applied to a man and woman, mean a carnal connexion. If A. charge B. a woman, with having a guilty connexion with C. ninety-nine men, out of every hundred, will understand it, as a charge of incontinence on the part of B. And if the words were introduced into a declaration for slander, with proper averments, no jury would hesitate to hold them slanderous. And we are required to hold that these vague expressions show, that a conspiracy to murder James Meadows existed between the prisoner and Mary Meadows, for it is the only ground upon which her acts and declarations were, or could be, held admis*325sible. It is precisely, as if the State, after promising to prove the existence of a conspiracy, had offered no evidence of it. In such a case, it cannot be denied, that the admission of the declarations would be illegal and erroneous. The State did not redeem its pledge; it did not prove a conspiracy, of any kind, and there *was*error in the admission of the declarations of Mary Meadows. It is, however, objected, that the prisoner cannot now avail himself of the objection, as he has not put it into his bill of exceptions. This is a Court of errors, and the proper way to bring cases here for our consideration, is by a bill of exceptions ; but for the convenience of all parties, the statement of the case, under the sanction of the Court, is received in the place of a bill; and it is true, we can take no notice of any objection, which is not stated in the case, or does not appear upon the record, properly so called. The prisoner’s objection does appear upon the face of the bill tendered by him, as I 'understand it. Whether*there was such a conspiracy, as would legalise the acts and declarations of Mary Meadows, as evidence against the prisoner, was a preliminary question of law and of fact, to be decided by the presiding Judge. With the errors committed in adjudging the facts, submitted to him, we have nothing to do; our business is only with errors of law. At the time, the evidence of the acts and declarations of Mary Meadows were received, it was admitted that it would not be evidence, unless a conspiracy was proved. The case does not show that any conspiracy was proved, but, in its place, a guilty connexion, which might, or might not, be evidence of one, but as--suredly was not one ; and his Honor, in so deciding that it was, as we must understand from the case, as sent here, committed an error in law. It is no answer to say,that such could not have been, in fact, the decision of the Court. I cannot look to any thing which is not in the case ; more particularly, when the life of a human being is at issue. If the case had stated, that a conspiracy to *326murder James Meadows, was proved, the prisoner, so far as this question is concerned, would have been concluded ; unless he had set forth in his exception, some legal objection to it — as that it was a conspiracy *to*commit some other crime; and the acts and declarations of Mary Meadows, in furtherance of the common design, would have been evidence against him. The case states, that, “it is unnecessary to go into particulars:” that is, of the guilty connexion ; but the notes of the presiding Judge were sent up. 1 have not looked into them, as they constitute no part of the case. *Godwin's Case*5th Ire. 403. It is objected, that these particulars ought to have been set out by the prisoner, in the case. I cannot see to what purpose or effect. To my apprehension, the prisoner has omitted nothing it concerned his interest to state. If a bill of exception does not state correctly the matter excepted to, the Judge is not bound to sign it; otherwise he is. Here, he has signed it, and we must consider it, as stating all that was necessary. It is further stated in the case, that the prisoner did not complain of the charge. No, the complaint is, that the declarations of Mary Meadows were admitted without proof of the existence of a conspiracy, which alone, could legalize them ; and this appears, upon the face of the case. I have little doubt, that much more was proved at the trial, upon this particular point, than is stated in the case, but I must decide it as it is; I cannot look out of the bill of exceptions.

.When the declarations were first offered, they were objected to ; and when the guilty connexion was proved, the motion to reject them was again renewed in substance. What more the prisoner could do, I cannot perceive. It appears to me, he did all, through his counsel, it. was necessary or proper for him to do, to bring his objection before the Court. It surely was not necessary for him to ask for an instruction from his Honor, that these acts and declarations of Mary Meadows were not evidence against *327him. His Honor had 'already decided-that they were. I consider the declarations and acts of Mary Meadows, as given to the jury, without proof of any conspiracy between her and the prisoner ; and; in this there was error.

In my opinion; the prisoner is entitled to a *venire de*novo.

Daniel, J.

As to the prisoner’s liability to be affected by the confessions of others, it may be remarked, in general, that the principle of the law in civil, and criminal eases, is the same. In civil cases, when once the fact of agency or partnership is established, every act and declaration of one, in furtherance of the common business; and until its completion, is deemed the act of all. And so, in eases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combination is established, the act dr declaration, making *a*pai’t of the *res gesta,*of one conspirator or accomplice iii the prosecution of the enterprise, is considered the *act*of all, and is evidence against all. Each is deemed to' assent to, or command, what is done by any other in furtherance of the common object. But after the common enterprise is at an end, no one is permitted, by any subsequent act or declaration of his own, to affect the others. . 1 *Greenlcaf’s Evi.*233. *State*v. *Poll and Lavinia,*1 Hawks, 442. *United States*v. *Gooding,*12 Wheat. 459. 2 *Peters’ Rep.*358. 2 *Stark. Evi.*232, 237. *Roscoe oti Evi.*60. The State, had, first, to establish a conspiracy between the prisoner and Mrs. Meadows, to murder Meadows, before any evidence of declarations of hers, were admissible against him. The ease states, that evidence was introduced to show, “ *a guilty connexion*between the prisoner and Mary Meadows, which it is not thought necessary to repeat.” How then can we see, or say, that any conspiracy ever existed 'between the prisoner and Mary Meadows to murder the deceased, or *328to do him some great bodily barm.” “ *A guilty connex-ion”*— what about ? what do these words mean ? I must confess I cannot tell. I cannot say that a combination or conspiracy between them, to kill the deceased, is the plain meaning of the aforesaid words. And without a combination or conspiracy, between the prisoner and Mary Meadows, to kill or do some great bodily harm to the deceased, the acts or declarations of Mary Meadows, relating to that subject, could not lawfully be given in evidence against the prisoner. The prisoner moved for a new trial, because the Court permitted the declarations of Biary Meadows (without oath, or an opportunity of cross-examination,) to be given in evidence against him. The State replied, that there was ‘•evidence introduced to shown *guilty connexion*between you and her.” Can this answer be a satisfaction of the previous requirements of the law, before acts or declarations of others, are admissible, as evidence against a prisoner? I think not, and am of opinion, that a new trial should be granted.

it is said, that it was the prisoner, who tendered the bill of exceptions; and it was his duty to state the fact, (if it was a fact) that the declarations of Biary Meadows were admitted in evidence against him, when no combination between her and him, to kill the deceased, had been established. And, I ask, if he has not done so? If there had in fact been a combination to kill, proven on the trial, then the Judge ought to have refused to sign this bill of exceptions.

Ruffin, C. J.

I think there ought to be a *venire de novo,*upon the ground, simply, that the acts and declarations of the woman, which were given in evidence, are not of such a nature, as can affect the prisoner. To make the acts and declarations of one person, those of another, or to allow them *to*operate against another, it must appear, *329that there was a common interest or purpose, between them 5 as applied to the case before us, that there was a conspiracy to murder the deceased, formed between his wife and the prisoner. But, that is not all which ought to appear; before the acts or declarations of one of the conspirators can be received against another, it must be shown, that they were acts done and declarations uttered, in furtherance of the common design, or in execution of the conspiracy. They must be acts and declarations of the one, that were authorised by the other, or such as became necessary in the prosecution of the joint business or criminal conspiracy. It has, indeed, been held in this State, that the declarations of one of the parties, unless they accompany acts, so as to come within the rule of *pais res gestal,*can only be received against himself. *Poll*& *Lavinia’s case,*l Hawks. 442. But, admitting that to be too strict a rule, no case has carried the doctrine further than has been just mentioned ; that is, that the acts and declarations must be such as relate to the common business, or purpose, and in furtherance of it. Now, this evidence does not appear to be of that character. I do not deem it material, or, rather, so indispensable, that the conspiracy should have been established in the .first instance, that the judgment should be reversed on that ground merely. Though that is the more natural, and convenient order of proof, it would be sufficient to support the conviction, if it was made to appear on the trial; so as to show that, on the whole, there was no prejudice to the justice due the prisoner. But, supposing a conspiracy to murder the deceased to have been shown in this case ? That does not seem to be any such connexion between that conspiracy, and the evidence given of the woman’s act, and declarations, as conveys to the mind the slightest impression, that they were in furtherance of the common purpose. If, for example, a conspiracy between these persons appeared, for having the deceased murdered; and then Mary Meadows had procured another person to *330do the deed, that act of her’s and any instructions she gave for the mode of executing it, might be evidence against the prisoner. Bat, the evidence, in this case, was entirely of a different kind; being nothing more than naked indications of her personal hostility to her husband, and, of her intention to have great bodily harm done to him. It cannot be seen that those acts or declarations were calculated or designed to bring about the killing of her husband, or, in any manner, furthered the common purpose between the prisoner and herself.

On this ground, I think the judgment erroneous. I own that, I am entirely o.f a different opinion from that of my brethren, as to the consequences of the deficiencies in the bill of exceptions. It is to be recollected that this is a Court of errors, and that every verdict and judgment prove *to as*their own correctness, until the contrary appear. There js no *case'*sent here, no report of evidence, on which we are to, see all the facts set forth, that are legally sufficient to authorise the judgment given. B.ut it lies upon the appellant to. allege an error; and then to set forth, in his exceptions, such of the facts of the case, as will show the opinion to which he objects, to be erroneous in point of law. The bill of exceptions is the production of the appellant, and contains his words, with the signature and £eal only, of the Judge to verify it. Thus looked at, it seems plain to me, when the prisoner’s exception says* that evidence was given to shew *a*guilty connexion between him and Mary Meadows that, in common fairness to the presiding Judge, and to the State, we must understand him to admit, that it establishes *the*guilty connex-ion before spoken of in the exception, that is, one to murder Meadows. What other can' be imagined, in reference to this accusation ? That, as it strikes me, must be the just interpretation of that expression, if it stood alone. But the conclusion is irresistible to my mind, when the prisoner further states in his exception,, that ho does not think it necessary to set out the evidence of that *331connexion. For what else can be inferred therefrom, than that the evidence legally established a guilty con-nexion between the-woman and himself, and *that it was such a guilty connexion as toas relevant to this trial, and to the question of evidence raised by him on the trial*? I agree that the statements in the exception are very imperfect, and unsatisfactory: such as will not enable us to see distinctly whether the decision was right or wrong. But whose fault is that ? Very clearly, the prisoner’s. It would have been much more correct to have stated in the exception, for example, what were the acts and declarations of Mary Meadows, that were given in evidence, instead of saying merely, that they were acts and declarations, tending to show hostility ; and so of the particular conspiracy alleged, and of that conspiracy, (or connex-ion, as it is called) which was proved. But the prisoner declined, expressly, to have that latter evidence set forth; and, surely, in a Court of error, he cannot complain, that it was not stated, nor insist that, if stated* it would have proved merely a case of *crim.*con, or any other connexion not relevant to the question then raised. The truth is, that even the counsel at the bar* though the same who tried the cause in the Superior Court, did not suggest such an idea; but insisted only on the two points, that it was error to receive the evidence of Mrs. Meadows’ acts and declarations; first, because they did not grow out of or concern the common purpose of the prisoner and herself; and secondly, because they were admitted *before*the State had proved the conspiracy to‘kill the husband.

•I think, if this were a civil action, no one would doubt, that it was not a case for reversal, merely because the appellant had not set forth the evidence given to show the kind and extent of the connexion between these pari ties. He would be told, that, if he chose to keep that in the dark, the judgment could not be reversed, if there *could*be *any*guilty connexion, that would justify the ad*332mission of the evidence; because, it was incumbent on him to show affirmatively an error. It is the same in criminal, and even in capital cases; for the Statute puts all cases upon the same footing; there being no means of bringing up *any*cause to this Court, but by bill of exceptions and appeal thereon.

Supposing, then, the other point in the case to have been against the prisoner, I could not have united in reversing the judgment, because the prisoner declined stating the evidence, or used the vague expression, “guilty connexion” — if, as the case stands, it can be deemed vague. But upon the first ground, I concur in reversing the judgment.

Per Curiam. Judgment reversed, and *venire de novo.*