
    Tatu et al. v. The State of Ohio.
    (Decided June 13, 1932.)
    
      Mr. F. J. Cook, for plaintiffs in error.
    
      Mr. P. L. A. Lieghley, for defendant in error.
   Vickery, J.

This cause comes into this court upon a petition in error to the common pleas court of Cuyahoga county, where the plaintiffs in error, Pete Tatu and Mary Tatu, were convicted of arson under a joint indictment charging them and two others, Jacob Adams and Julia Stocker, with the burning of a building for the purpose and design of defrauding an insurance company, the building being owned by Pete and Mary Tatu.

From the record, arguments of counsel, and the briefs we learn that Pete and Mary Tatu owned a house in Bedford, Cuyahoga county, Ohio, and that it was incumbered with a mortgage to the Cleveland Trust Company for $1,200, and with a second mortgage for $900; that the house was vacant, and the Cleveland Trust Company had procured the renewal of insurance in the sum of $2,000, which had previously been $3,000, to protect its loan, secured by the mortgage on said property; that thereafter, within a week or two of the fire, Mary Tatu had the insurance increased to $3,000, and, at the time of the fire, there was $3,000 insurance upon the property with incumbrances of $2,100.

We learn further from the record that the house had been built by Pete and Mary Tatu some several years before the fire, and that about four years prior thereto they had moved to a farm in Twinsburg, Summit county, Ohio, and were running a dairy farm, and that in their employ were Jacob Adams and Walter and Julia Stocker.

From the record we also learn that the business was not prosperous, and that the Tatus had been unable to pay the hire of the Stockers, nor had they been able to allow Adams anything, although he was a sort of partner in the venture; that on November 19, 1931, at about 11 o’clock in the night season, the Stockers and-Adams, who lived in the farmhouse with the Tatus in Twinsburg, procured some gasoline and put it in Stockers’ car and went to the house owned by the Tatus in Bedford, Ohio, and there saturated the house with the gasoline and set fire to the place, in which adventure Stocker was burned in such a manner that the next day he died; but, after succeeding in burning the house, the Stockers and Adams returned to the farmhouse occupied by the Tatus at Twinsburg, Ohio.

Tatu immediately made an application to the insurance company for the insurance, saying nothing about Stocker having been burned, nor anything relating thereto, but gave the insurance company to believe that it was a fire which happened in the ordinary course of events, and that he was entitled to receive his insurance.

When Stocker was taken to the hospital and died, the authorities investigated the case, and arrested all four of the survivors, Mrs. Stocker, Adams, Pete and Mary Tatu, for arson, and they were indicted, as already stated, in a joint indictment charging firing the house for the purpose of defrauding an insurance company.

Pleas of not guilty were entered to this indictment by all the defendants, and on the trial of the action Adams and Pete and Mary Tatu were convicted; Mrs. Stocker having been found not guilty. Adams did not take the witness stand, nor did he prosecute error to the judgment of conviction, but Pete Tatu and Mrs. Stocker did take the stand.

The record and evidence show that at the time of this fire Mr. and Mrs. Tatu, the plaintiffs in error here, were home in their house in Twinsburg and took no part in the actual firing of the building, but subsequent to the fire, and after the death of Stocker, Jacob Adams made what is tantamount to a confession, as did Mrs. Stocker, in both of which they incriminated the Tatus; and from these confessions, if they be confessions, it can be safely gathered that there was a conspiracy entered into between at least four, if not five, of these persons to fire this building for the purpose of getting the insurance, and that Pete and Mary Tatu were not to be present, but the work was to be done by Adams and the Stockers. As a matter of fact, it was done by Adams and the Stockers.

From the oral statements that were made by Adams and Mrs: Stocker, and the written statements of confessions made by them, it seems that Mrs. Tatu bought two gallons of gasoline for the purpose of taking it over to the house in Bedford to be used in the destruction of the same. This was denied by the Tatus, and, I believe, Mrs. Stocker subsequently denied it likewise. Practically the only evidence that there was to connect the Tatus with this fire consisted of the statements made by Adams and Mrs. Stocker, and this evidence was offered by the state and admitted by the court on the theory that there was a conspiracy, and that the statements made by one coconspirator could be introduced in evidence against any one of the coconspirators. This seems to be on its face a sound proposition of law, and undoubtedly is in accord with the authorities, but, before statements of coconspirators can be used against the absent ones, there must be evidence aliunde to prove the conspiracy. In other words, besides the declaration of the conspirators, there must be evidence that a conspiracy existed.

To support this proposition we cite from the opinion of Judge Crew in the case of Hammond v. State, 78 Ohio St., 15, at page 23, 84 N. E., 416, 418, 15 L. R. A. (N. S.), 906, 125 Am. St. Rep., 684, 14 Ann. Cas., 732, as follows: “until the conspiracy is shown by other and independent evidence the acts and declarations of an alleged co-conspirator are inadmissible to establish the connection with such conspiracy of one charged as a co-conspirator.”

See, also, 2 Jones Commentaries on Evidence (2d Ed.), Section 943: “But in such cases it must first be proved, by other evidence, that a conspiracy existed at the time the declarations were made. ’5 And Jones, to support this proposition, cites a great line of authorities, which apparently state the general doctrine of the admissibility of statements of alleged coconspirators.

In this case, outside of the confessions, there is a dearth of evidence to show a conspiracy. The writer of this opinion, from all the circumstances of the case. has a shrewd suspicion that such a conspiracy did exist, but it must be proven in accordance with the rules of law, and the proof must be legally admissible.

But, assuming that there was at least prima facie evidence aliunde of a conspiracy, then, in order to make the statements of an alleged coconspirator admissible, they must have been made in furtherance of the conspiracy, and, in a measure, aid in carrying it out, and they must be made before the purpose of the conspiracy is carried out. All the authorities seem to be to the effect that, even though the conspiracy be established by evidence aliunde, in order to make the declarations of a coconspirator admissible they must be made while the conspiracy is in progress and in furtherance of the purpose to be carried out by the conspiracy.

See Jones on Evidence, Section 943: “Even if a conspiracy is shown aliunde, the declarations of one conspirator are not admissible against the others, if made after the common design is accomplished or abandoned.”

See, also, 12 Ohio Jurisprudence, 412, Section 390: ‘ ‘ To warrant the admission of the acts or declarations of a co-conspirator, it must be shown that they were made in furtherance of a common design or purpose” —citing Umbenhauer v. State, 2 C. D., 606, 4 C. C., 378; Donald v. State, 11 C. D., 483, 21 C. C., 124, and Clawson v. State, 14 Ohio St., 234.

Now it is important to bear these authorities in mind, in view of the circumstances of the present case, because the statements, both oral and written, that were introduced in this case, were made after the carrying out of the conspiracy; that is, after the burning of the building was completed and Stocker had died of burns which he had received in starting the fire.

From all the authorities that we have cited, and many more that we could recite, it seems that not only must the statements be made in furtherance of aiding and accomplishing the purpose of the conspiracy, but they must be made while the conspiracy is in progress; that any statements made by an alleged conspirator after the object has been accomplished amounts only to a confession of his, and, if it is not made in the presence of, or acquiesced in by, the other coconspirators, it is inadmissible against anybody except the person who made it.

Now, if these written statements and the verbal statements that were made are scrutinized, one can see that they partake of the nature of confessions, and, inasmuch as none of them were made in the presence of the two plaintiffs in error, under the authorities we do not see how they could be admissible. In fact, the authority is positive the other way: That, where the statements are made, not in furtherance of and in carrying out the purpose of the conspiracy and while it is in progress, but after the purpose has been accomplished, or “abandoned,” as the cases say, the statements made by alleged coconspirators in the absence of the others are evidence only against those who make the statements, and they are inadmissible against those who did not make them. As authority for this proposition we quote from 1 Ruling Case Law, 520, Section 61, as follows: “After the accomplishment or abandonment of the common design, no declaration of a conspirator will affect another; and such declarations if offered in evidence should be excluded. ’ ’

In People v. McQuade, 110 N. Y., 284, 18 N. E., 156, 1 L. R. A., 273, the syllabus reads: “While the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense, when the conspiracy is at an end and its purpose accomplished or abandoned, no subsequent act or declaration of one of the conspirators is admissible against another.”

That authority is squarely in point with the instant case, as is also the case of Spies v. People, 122 Ill., 1, 12 N. E., 865, 17 N. E., 898, 3 Am. St. Rep., 320, from which we quote syllabus 31: “After a conspiracy has been established, only those declarations of each member, however, which are in furtherance of the common design can be introduced in evidence against the other members. Declarations that are merely narrative as to what has been done or will be done, are incompetent, and should not be admitted except as against the defendant making them, or in whose presence they were made.”

These authorities seem to be conclusive of what a reviewing court must do in this case. There is, as already stated, no evidence, practically speaking, to hold the Tatus for this arson, inasmuch as they were not present and did not participate in the burning, except the declarations of the coconspirators, if there was a conspiracy; and those declarations are not in furtherance of the carrying out of the design of the conspiracy, but rather would hinder and prevent carrying it out if it had not already been carried out; but as a matter of fact they were made after the completion of the conspiracy, and are therefore merely statements that would bind the individuals that made them, or those in whose presence they were made; and it is conceded in this case that the Tatus were not present when these statements were made, and that they were made, as shown by the record, after the completion of the offense.

Inasmuch as Mrs. Stocker, who was jointly indicted with Adams and the Tatus, was acquitted by the jury on the theory that she did not understand what was going on, and was under the coercion of her husband, it was rather unfortunate that immunity had not been granted to her so that she could have been used as a witness. Had she told the story on the witness stand that she made in her statement, it might have shown a conspiracy, which, undoubtedly existed in this case, so that the Tatus could have been convicted.

From the situation in this lawsuit, as we gather it from the record and from the arguments, all these persons stood to gain by the burning of this house in Bedford. It is true that it was mortgaged for $2,100, but, after these sums were paid — if the $900 or second mortgage was a beneficiary of these insurance policies — there would still be $900 that would be coming to the Tatus, because the fire entirely destroyed the building, and it was a total loss. The second mortgage of $900 was a sum of money that was loaned to the Tatus for the purpose of carrying on a dairy business, and the insurance would have paid this loan and left the business free, and it would have provided a fund of $900 to pay the Stockers and Adams for the work that they had done on the farm, for which they had not received pay; so all the persons who entered into this conspiracy, if there were one, were mutually interested in it, and the fact that the Tatus made an application for the payment of this insurance without telling the insurance company anything about the circumstances — for they knew at the time that Stocker had died from the effects of burns received in this place, for he was brought back to the home of the Tatus in Twinsburg, so they must have had knowledge of the fire when they made application for the insurance money — bears out the theory of the state that there was a conspiracy, and maybe there is enough in the record, outside the confessions themselves, to show at least prima facie that there was a conspiracy.

But, even if that were so, under the authorities cited these statements and the oral testimony which recite what had taken place after the commission of the offense were in no wise admissible, and it was such error to admit them that this court can do nothing but reverse the judgment, and, feeling that perhaps the state will be able to procure other evidence, we will content ourselves with reversing this judgment and remanding the case for a new trial.

It is claimed in this case by the state that there were no exceptions taken to the overruling of the objection to the admission of the statements of the coconspirators in evidence against the plaintiffs in error. This is answered by a reference to the new Criminal Code, Section 13442-7, which in effect provides that, when an objection to the introduction of testimony is made and overruled, even though no express exception is taken, it is available to the objecting party. Therefore this contention is not of much import. We think on the whole record that the judgment must be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Levine, P. J., and Weygandt, J., concur.  