
    People v. Kief.
    
      (Supreme Court. General Term, Fourth Department.
    
    November, 1890.)
    1. Criminal Law—Evidence—Declarations of Co-Conspirators.
    On an indictment for murder against the wife of the deceased and another, the wife was tried separately and acquitted. On the subsequent trial of the other defendant, after evidence indicating a conspiracy between him and the wife to murder the husband had been given, one witness testified that the wife had said that her husband misused her, that she had intended to poison him, and that she would if her courage had not failed; another testified that she had called him names; and another, to other statements by her,—all at times before the existence of any conspiracy was shown. Held, that these declarations by her were not admissible against him.
    2. Same—Acts-of Co-Conspirator.
    A deed was also put in evidence executed by her after the death of her husband, to secure her counsel for his services; but it did not appear that her co-defendant took any part in the transaction, except that he accompanied her, as a servant, to the city where she went to visit counsel, and prepare the deed. Held, that its admission was error.
    
      8. Witness—Credibility—Impeachment.
    A witness for defendant was asked, on cross-examination, to state that the farm she and her husband lived on joined deceased’s farm, and that her husband had mortgaged it and his other property. Held, that these acts of her husband were inadmissible to impair her credibility.
    4. Homicide—Evidence—Competency and Relevancy.
    The circumstances attending the preparation of the body of deceased fop burial, and the disposition made of his clothing, etc., so far as known to defendant, may be admissible against him.
    5. Same—Declarations and Admissions.
    Testimony and declarations of a witness before a coroner, at an inquest held before it has been ascertained than a crime has been committed, and before the arrest of any person on a charge of homicide, may be admitted against him at his subsequent trial on an indictment for the crime, although at the time of his examination he was aware that a crime was suspected, and that he was suspected of being the criminal.
    6. Criminal Law—Evidence—Acquittal op Co-Dependant.
    At the trial of one of the defendants, on an indictment against two for murder, after the acquittal of the other on a separate trial, the rejection of the record showing such acquittal is not error. ■
    Appeal from court of oyer and terminer, Madison county.
    Indictment against John Kief and another for the murder of Adelbert D. Howard, charging the crime of murder in the first degree. Plea not guilty. Trial before a jury in the oyer and terminer held in Madison county, in September, 1886. Adelbert D. Howard died the 17th of December, 1884, and the indictment upon which the defendant was tried charges that his death was caused by the felonious act of Carrie 0. Howard and the defendant by administering to the deceased arsenic. Carrie C. Howard had a separate trial before a jury at an oyer and terminer held in January, 1885, and was acquitted by the verdict of the jury. The deceased was buried on the 18th of December. His body was exhumed on the 7th of January, 1885, and taken to an undertaker’s room in the village of Peterboro, and a post mortem was held upon the body; and again it was returned to the grave, and remained there until January 23d, when it was again taken up and taken to the undertaker’s room and remained there four days. An inquest was held on the 28th of January, 1885, at Peterboro, and at the close of the inquest the coroner issued a warrant, upon which Carrie 0. Howard and the defendant were arrested and committed to jail in Morrisville. The defendant was sentenced to be executed on the 26th of November, 1886. The defendant appeals “from the judgment of conviction rendered against him in the court of oyer and terminer on the 6th day of October, 1886.” The case contains all. the evidence.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Joseph I. Sayles, for appellant. H. M. Aylesworth, Dist. Atty., and E. N. Wilson, for the People.
   Hardin, P. J.

Section 29 of the Penal Code provides as follows; “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or abets in its commission, and whether present or absent, and a person who, directly or indirectly, counsels, commands, induces, or procures another to commit a crime, is a principal. ” The theory of the -prosecution is that the defendant aided and abetted' Carrie C. Howard in the commission of the crime of murder. She was married to the deceased in 1878, and had various differences and quarrels with him until in 1882, when she separated from him. .She was induced to return to her husband by means of a transfer made of his property to her. ■ In the month of October, 1884, defendant became an employe, and, as such, a member of the Howard family. And it is claimed that while he was thus employed he joined the wife of the deceased in a conspiracy to cause the death of her husband, Adelbert D. Howard. The evidence indicates that from some time in the month of October, 1884, and down to the time of the death of the deceased, the defendant and Mrs. Howard were much in each óther's company. Together they visited Oneida, Cazenovia, Canastota, Morris ville, and Clock ville, and, on some occasions, drank intoxicating liquors in the hotels and saloons; she going with him in a carriage or a lumber wagon or on loads of grain. It also appeared that he assisted her at times about the household work. It is claimed that on the 3d day of December, 1884, the defendant and Mrs. Howard went to Oneida together,—a distance of about 14 miles from the Howard farm,—and that while there Hrs. Howard made a purchase of arsenic in the ■ name of the defendant; and that a day or two after this purchase the deceased was taken ill, having all the symptoms of arsenical poisoning. From that affliction he apparently partially recovered, and by the evidence it appears that on the 11th of December, 1884, Kief was again in Oneida, and while there purchased an ounce of arsenic at the drug-store of Dyer. A day or two thereafter Howard was again taken violently ill, having similar symptoms, and somewhat aggravated. The symptoms continued to increase, and he grew worse until the night of the 17th of December, when he died. The evidence fully reveals his symptoms, which indicated arsenical poisoning; and a post mortem, was held and an analysis made of a portion of the body by a chemist, and the results readied tend to indicate that Howard came to his death by reason of having taken poison in his stomach. From the testimony of Dr. William Smith, a chemist, who made an analysis of portions of the body, it appears that he found in the liver the equivalent of a grain and a half of white arsenic; and in the stomach, and its contents, one-eighth of a grain; and in a piece of muscle one-twentieth of a grain; and in some other portions examined by him four-tenths of a grain. It appeared by the evidence that the defendant and Carrie C. Howard were the persons who took care of the deceased during the sickness alluded to. Some evidence was given of the declarations of the defendant tending to support the theory of the prosecution, and upon all the evidence it is insisted in behalf of the people that a conspiracy had been formed to cause the death of the deceased, and that, in pursuance of that conspiracy he was poisoned, and that the defendant aided and abetted in the commission of the crime.

In Kelley v. People, 55 N. Y. 566, it was said: “A conspiracy maybe proved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances, and their general connection or otherwise, be satisfactorily shown to be confederates in the commission of the offense. ” In the same case it was also said that “ where there is sufficient evidence to justify the conclusion that different persons charged with the crime were all acting with a common purpose and design, although it does not appear that there had been a previous combination or confederacy to commit the particular offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the others.” From the principles just quoted, it may be assumed that the evidence was sufficient to warrant the jury in finding a conspiracy between the defendant and Carrie C. Howard to accomplish the death of the deceased; and it may be said that while such a conspiracy existed, the acts and declarations of either, in furtherance of the conspiracy, were competent evidence. However, the declarations of either before the formation of the conspiracy, or after the consummation of the offense, do not come within the rule.

In Guaranty Co. v. Gleason, 78 N. Y. 504, it was held, viz.: “Having established a conspiracy, proof of the acts, admissions, and declarations of any one of the conspirators, in pursuance and furtherance of the criminal enterprise, and in reference thereto, is competent. But the statement of one of them as to a past transaction, accompanying no act done in furtherance of or in connection with such enterprise, is not competent against the others.”

Mr. Greenleaf lays down the rule (3 Greenl. Ev. § 94) as follows: “The evidence of what is said or done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of their design; what was said or done by them before or afterwards not being within the principle of admissibility.” This rule was stated and reaffirmed in People v. Gorham., 16 Hun, 93.

In People v. McQuade, 110 N. Y. 307,18 N. E. Rep. 156, Judge Andrews, in speaking upon the subject, said: “The admission of this evidence is in contravention of the settled rule that only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against one of the conspirators on trial for the common offense; and that when the conspiracy is at an end, and the purposes of the conspiracy have been fully accomplished, or the conspiracy has been abandoned, no subsequent act or declaration of one of the conspirators is admissible against another. 1 Greenl. Ev. § 111; 3 Greenl. Ev. § 94; People v. Davis, 56 N. Y. 103; Guaranty Co. v. Gleason, 78 N. Y. 503.”

Nellie Lard testified that she was in the house of the Howards on the 17th of April, 1884, and that she went with Mrs. Howard to Peterboro. She was then asked to state whether she had a conversation on that day with Mrs. Howard. The question was objected to as incompetent and improper, and not evidence against the defendant. The objections were overruled, and the defendant took an exception. The witness answered she had a conversation on that day; and when she was asked to state what Mrs. Howard said, similar objections were taken and overruled by the court, and an exception was-taken. The witness thereupon answered, viz.: “She was talking about Howard, and said he misused her. He went to Syracuse in bad places, and came home sick, and she had to wait on him; and she said how mean he was. She said she had a mind to give him poison sometimes. She said she would if her courage hadn’t failed her. I told her she wouldn’t do any such thing, and she said she would.” Thereupon the defendant’s counsel moved to strike out this evidence as incompetent and immaterial, and that no foundation had been laid for it as against the defendant. The motion was denied, and .an exception was taken. The defendant was not present when this conversation took place. There is nothing in the evidence to indicate that a conspiracy had then been formed between Mrs. Howard and the defendant to cause the death of Howard; on the contrary, it is very apparent from the evidence that if there was any conspiracy formed between the defendant and Mrs. Howard it was formed long after this conversation. Hence we are of the opinion that the evidence was in violation of the rule which we have already stated, and that it was erroneously received. When Simeon Eeese was upon the stand as a witness for the people, he was asked whether he heard Mrs. Howard call her husband names, and when. This question was objected to and allowed, and an exception taken by the defendant, He said that in 1881 “she called him, before we ate breakfast, a son of a bitch; a poor-house pauper.” We think her declarations on that occasion were not admissible. While David Jones was being examined in behalf of the people, he was allowed to give statements and declarations made by Mrs. Howard in the summer of 1884, against the defendant’s objection and exception. By this witness’ evidence, it appears that he worked for the Howards from December, 1883, until the 7th of October, 1884; and that the defendant took his place; and that the defendant was there a week or ten days in the month of June. There is nothing in the testimony of this witness, or other evidence in the case to indicate that a conspiracy had been formed prior to or at the time of these declarations. We think their admission was therefore error.

2. The people put in evidence a deed executed in December, 1882, from Adelbert D. Howard to Carrie C. Howard; and also a deed made by Mrs. Howard to Henry J. Mayor, dated January 21, 1885; and also a deed made by Mayor and Carrie C. Howard to the’prisoner’s counsel, dated January 27, 1885. Objections were taken to these records, and they were overruled, and exceptions were taken to the rulings. Apparently the latter deed was given for the purpose of securing counsel for services in defending Mrs. Howard. Although the defendant may have been at the city of Borne when the latter deed was executed, the evidence nowhere discloses that he took any part in the transaction resulting in the deed. If there had been a conspiracy existing between the defendant and Mrs. Howard, its purpose had been accomplished by the death of Howard on the 17th of December, and her act in transferring her property to her counsel on the 27th of January, 1885, apparently had no connection with the conspiracy, if one existed prior to the death of Howard. We think the circumstance that the defendant went with her to the city of Borne, acting as a hired man or servant, on the. occasion when she visited the office of her counsel and prepared the deed, did not render her act competent evidence against the defendant.

3. The defendant called as a witness one Elizabeth McGinnis, whose testimony was quite important for the defendant. During the cross-examination, for the purpose of impairing her credibility as a witness, she was asked to state that the farm that she and her husband lived upon joined the Howard farm, and that her husband held title to it, and that her husband had executed a mortgage upon his real and personal property. We think the inquiry into the acts of her husband in mortgaging his property were immaterial and ought not to have been received for the purpose of impairing her credibility as a witness.

4. We think the acts and circumstances attending the preparation of the body for burial, and what disposition was made of his clothing and ring, so far as they were known to the defendant, were correctly received in evidence.

5. The rule laid down by the court of appeals in People v. Mondon, 103 N. Y. 221, 8 N. E. Rep. 496, seems to justify the admission of the testimony and declarations made by the defendant before the coroner. We think the rule stated in the Mondon Case was not departed from i n People v. Sharp, 107 N. Y. 427, 14 N. E. Rep. 319. See, also, Code Crim. Proc. § 395, and Hendrickson v. People, 10 N. Y. 13.

6. We are not persuaded that any error was committed in rejecting the record showing the acquittal of Carrie C. Howard of the crime charged in the indictment against her. Gelston v. Hoyt, 3 Wheat. 316. In State v. Mooney, 64 N. C. 54, it was held: “Where two are indicted for a battery, and one for the act, and the other for using encouraging language at the time, the wife of the one who encouraged the beating is a competent witness for the other party. The legal effect of an acquittal of the other is not an acquittal of her husband. ” This case cites State v. Rose, Phil. (N. C.) 406; State v. Ludwick, Id. 401. Other questions were pressed upon our attention by the learned counsel for the respective parties in the argument of the case, but we do not deem it important to consider them in extenso, as the views we have already expressed lead to the conclusion that a new trial must be awarded. Conviction and judgment reversed, and a new trial directed in the court of oyer and terminer of Madison county, to which court the proceedings are remitted.

Merwin, J., concurs.

Parker, J., concurs in the result for reasons stated in his opinion.  