The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-16
f4gcw RUse.

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he pteivnt motion - particularly directed
aganit the admifion of the teitimony of Neale,
who rs offered for the purpofe of proving GER
tam converiations between himielf and Herman
: Rannerhatiet. 1t is Objected that the dscara-
irons Of Herman Blannerbaifett are at this time
hadmiiiOe on this indictment.
The rule of evidence which rejects mere hear
Fay t,{tmony, which excludes from trials of
criminal civil nature the declarations of any
other individual than of him againit whom the
proceedings are intituted, has been generally
deemed all enen,ial to the correct adrniniftra'i-
on OF juitIce. know not why a declaration in
court ihoud be unavailing unefs made upon
oath, VI declaration out of court was 70 crimi-
nate others than him WHO made il /; nor why
man fhould have a conittutional claim to be
confronted with the witneles againft him, if
mere verbal declarations made in his abfsnce
may he evidence againt him. / know Of no
principle in The preervation of which all are
more concerned. / know none by underniin-
ing which, life, liberty and property, might be
more endangered. 1t is therefore incumbent
on courts to be wachful of every inroad on a
principle 70 truely important.
This rule as general rule is permitted TO
Rand, but foH,e exceptions to it have beer in
troduced concerning the extent of which diff
ference of opinion prevails, and that difference
produces the preient quefion.
The LIT exception is that in cafes of confpi-
racy the acts, and it is fad by fome the declara-
| tons, of all the confprators may be given in
evidence on the trial of any one of them, for
the pnrpofe Of proving the conipiracy, and this
Gale IT Is alledred, comes within the exception.
With regard TO this exception dHinetion is
taken IN the books between the admiflibiiity and
operation of teitmony which is clear in point
OF law, but not at all times eaiy to practice in
fact. 1t is that although this teltimony be adj
mitted, it is not to operate againit the accuied
unlefs brought home to him by teGimoRy drawn
| from his own declarations or his own conduct
But the quettion to be coniidered is, does the
exception comprehend this cafe ? Is this cafe
OF conipracy according to the well eitabIiihed
law meaning of the term
Cafes of con!pracy may be of two defcrip-
tions.
LIT. Where the .confpiracy is the crime, in
which cafe the crime is complete although the
ad lhoud never be formed, and in iuch cafes if
isveral be indicted, and all except one be acqnt-
Ted, that one cannot, fay the books, be convict
ed, becanfe he cannot confpire alone.
81. Where the crime confts IL the intention,
and is proved by a conipiracy, 70 that the cou-
vittion OF the accufed may take place upon G.
violence that he has cosfpired to do any act
which manifelts the wicked intention.
II both thcfe cafes an aet is not efental to
the completion of the crime, and confpiracy
is charged IN the indictment as the ground of
accufation. II the conipiracy be the tole charge
as it may be, the queaion to be decided is not
whether the accuied has committed any par,i-
cular fact, but whether he has confpired to
commit it. Evidence of confpiracy in fuch
cafe goes directly to fupport the iii'ue. 1t has
therefore been determined that the nature OF
| the confprdry may be proved by the tranfatti-
onS of any of the confpirators in furiherance Of
h,sc a, of mill bo,
ever, of the particular coniprator upon trial,
mutt nill depend on his own particular con-
duct.
In the cafe at bar the crime confits not in
intention but in acts. The act of Congrefs does
not extend TO the Scret deign # not carries in
to open deed, nor TO any confpiracy however
extenGye IT it do not amount TO beginning or
Fitting on foot military expedition. The in
dlctmeBt contains no auiion to confpiracy,
and of confequenee the iaue to be tried by the
jury is NOT whether any confpiracv has taken
place; hut whether the particu ar facts charged
in the Indictment have been committed.
do rot mean TO admit that by any courfe
wdch might have been given to the profecuti-
on, this could have been converted into a cafe
of confpiracy but mott ailurediy if i. was in-
tended 70 prove confpiracy, and TO lie, in that
kind of tetmony which is admdfbie only in
fuch cafe, the indictment ought to have chaIg-
ed il.
/ have not been able to find in the hooks
hugle decItion, or fohtary dicium which would
counenance the attempt that is now made to
introduce as teitimony the declarations OF third
per!ons made in the abience of the perion on
trial, under the idea Of a copfpiracy where no
conipiracy is aliedged in the indictment. The
reiearches of the council for the proleculion
have not been more juccclsful. But they iup-
pole this cafe, though not within the letter, to
come clearly within the reafoni1g of thole cafes
where this teftimouy has been allowed.
Ii has been laid that wherever the crime may
be committed by hugle individual, although
in point of fact more than one niou'd be con.
cerned ait, as in all cafes of felony, the pro-
fecu,ou muf be conducted in he ufual mode,
and the declarations of third perions cannot be
introduced at a trial; but whenever the crime
requires more than one perlon, where from its
nature it cannot be committed by lingIe indi-
viJuaI, although it lial conflt, not in confpira-
cy, but in open deed, yet it IL in the nature of
CoEfpracy, and evidence Of the declarations
and ats OF third perlons conceded with the
accuied, may be rec eived whether the indiSi-
ment covers iuch teltimony or NOT.
mu't cOnfsis that do not feel the force Of
this dtinttion. | cannot conceive why, when
numbers do in truth coGfp r. to commit a. act
rs mutder or robbery, the rule ihoud be, that
the declaration Of one of them il no evidence A.
gaina another, and yet, the aei fiIould require
niore than one forts commiii0n, that the drcla-