Amador ledger. (Jackson, Amador County, Calif.) 1875-19??, 1909-01-22

his participation In the offense charg'
ed by the introduction in evidence of
the oral admission or confessions of
his co-defendant, Mary Ross made on
the oath day of December and subse-
queut to the date of the taking the
deed by her, and subsequent to the
date of the recording of the same.
The question is not whether the
sworn testimony of Mary Ross, an
alleged co-conspirator would have
been sufficient to connect this de-
fendant with the crime as an accom-
plice-but whether her statements or
her confession of the crime and this
petitioners completely therein made
to other persons, by her when not un-
der oath, nor in the presence of this
petitioner, and after the commission
of the crime are competent testimony.
lt appears from the testimony that
over the objection of petitioners
counsel as to its competency and adj
instability witnesses we're permitted
to testify; that on the oath of Deem
Der, and subsequent to the date of re-
oording the deed, and not in the pre-
sence of this petitioner, his co defend
ant Mary Ross while under arrest for
the offense upon which she and this
petitioner we're held to answer said (.
''That she took the deed out of Mr.
Mason's house; that she paid Mr.
Mason no consideration; that she
would give him S400, or she would do
anything IL he would get her out of
trouble; that she gave the deed to her
husband this petitioner )and told him
to take it to Mr. Snyder and have
it recorded; that she told her hus-
band that she had Paid no money;
that. he. knew she had no money and
that all the money they had was in
the Bank of Amador County.
In the case Of People Us. Opie, 123
Cal. page 2Y5, it appears chat the
defendants we're charged with steal
ing gold ore. William Opie was upon
trial and the court allowed evidence
as to the appearance, conduct and de-
clarations of Edward Opie after the
commission Of the offeuse upon the
ground that the conspiracy was not
ended because the stolen property
had not been distributed between the
thieves. The Supreme Court reversed
the judgment of conviction upon the
ground that there was no evidence
that it was ever intended it should
be distributed, or that il had not
been distributed at that time.
In this CAGE at page 296 the supreme
court say: g This court has had
occasion many times. and recently,
to advert to the error of similar
judicial action "(People VS.. Moore
40 Cal. 10: People VS.. Dilwooda "a
Gal. 80; People VS.. Oldham, Ill Cal
esq.,
In People VS.. Oldham, Ill Cal. 652
The supreme court make use of this
Language quoting from People vs.
Moore. " 1t was never competent tt
use as evidence against one on tria
for an alleged crime the statements Of
an accomplice not given as testimony
i'll the case. nor made in the presence
ofsdefendant, nor during the pend
ency of the criminal enterprise anc
In turtherance of its objects. Tc
hold such testimony admissible would
be to ignore the rules of evidence
settled and everywhere recognized
flom the earliest times.
In People vs.. Winter, l25 Cal. al
page 33l we find the court saying
Declarations made by Raymond e
co-conspirator) subsequent to tn,
killing, not in the presence of de
PENDANT were the purest hearsay anc
clearly inadmissibl -
From the foregoing authorities il
appears that the declaration and
admissions of Mrs Ross were incom
petent and inadmissible as evidence
against this petitioner; that there is
under the testimony no reasonable OIL
probable cause to commit him upon
the criminal charge, and he is entitled
to his discharge from custody.
Let AN order be entered in accord.
ance herewith.
Dated January 20, 1909.
FRED v, WOOD,
Judge.