
    
      The State v. J. C. Simons & J. S. Shumaker.
    
    Upon the trial of an indictment for conspiracy, when evidence has been given 'which warrants the jury to consider whether the prisoner was engaged in the alleged conspiracy, and had combined with others for the same illegal purpose, any act done or declarations made by one of the party, in pursuance and promotion of the common object, are evidence against the rest; but what one of the party may have said, not in pursuance of the plot, cannot be received against the others.
    When one party produces partial evidence of a conversation with the other party to the suit, the latter has a right to disclose the whole conversation. But the conversation of a witness with a third person, is not, in itself, evidence against any pai ty to the suit It becomes evidence only as it may affect the character and credit of the witness; and the re-examination of the witness must be limited to such inquiries as may put the Court in possession of all which may affect his character and'eredit.
    Although there was evidence of the co-operation of the defendant with his co-defendant to elude the creditors of the latter in procuring a discharge under the insolvent debtor’s act, sufficient to suppoit a charge of conspiracy to detain and secrete funds and effects of the co-defendant from the claims of his creditors; yet where the only evidence that the defendant had any such funds, or that they had been deposited with him, consisted in the declarations of his co-defendant, whose unprincipled character was admitted by all parties, and who made the declarations under the strong influences of resentment, fear and interest, and in contradiction of circumstances; the fund deposited being the corpus delicti, the Court held the evidence in support of the charge against the defendant to be unsatisfactory, and ordered a new trial.
    
      Before Fhost, J. at Charleston, October, 1849.
    INDICTMENT l?OR CONSPIRACY.
    One count of the indictment charged the defendants with having conspired to defraud N. A. Cohen and others, creditors of Shumaker, without sefling out the means by which ihe fraud was to be effected. The olher conni charged (fiat ihe defendants conspired to defraud N. A. Cohen and others, creditors of Shumaker, by withholding certain large, amounls of money, so as to make the same unavailable lo the said crediiors for the payment of their d"bts; and that in pursuance of the said conspiracy, Shumaker did deliver lo Simons the sum of $7,600, and Simons promised Shumaker to assist him in secreting Ihe said sum of money until Shumaker should obtain his discharge under the insolvent deb'or’s act.
    The record of the proceedings in the City Court of Chatles-ton, on the application of Shumaker for his discharge under the insolvent debtor’s act, was offered in evidence, and ihe objection toils competency being overruled, it appealed that on the trial by jury of the issues on the suggestion of fraud, filed by N. A. Cohen and others, Shumaker was found guilty on the first, second, third and fourth grounds of the suggestion. The production in evidence of the Whole record, reading the pioceedings, was also objected to, and the objection overruled; because it was necessary to an understanding of the verdict, that the whole of the proceedings should be exhibited; and the record, if evidence at all,'could not be garbled. Among other effects contained in Shumaker’s schedule, were a note of Robert Gilmore, for $875, and all the petitioner's claim and interest in the stun of $7,60U, and in a slave, named Paul, and certain articles of furniture, assigned to N. A. Cohen, in trust for the creditors of Shumaker, by a deed, dated 5th December, 1848. The grounds of the suggestion on which the verdict of guilty was rendered, related to the sum of $7,600, and the slave Paúl; and charged that by a corrupt agreement between Simons and Shumaker, the said effects were transferred to Simons to keep, and apply the same to the use of Shumaker, by the several eoviuous devices mentioned in the said grounds, so as to defraud the creditors of Shumaker.
    Shumaker was an adventurer, of whom the first account, after he came to Charleston, was, that he applied to Robert Gt more, who had recently established a Bakery in Charleston, to i e admitted into a partnership with him. Shumaker represented that he had about $3,000, and proposed that he should carry that sum into the business, and greatly enlarge if. This was in September, 1848. Gilmore reluctantly consented to form the partnership; and it was arranged that he should go to the North and provide the means for enlarging the business; when he was about to go, it appeared Shuma-ker had not the sum of money he had represented ; all that he could raise was $875, which he delivered to Gilmore, who gave to Shumaker a due bill, as a voucher for the money received. Tins is the note of Gilmore mentioned in the schedule. Gilmore went to the North, and was absent six or eight weeks, while Shumaker took charge of the Bakery in Charleston. On the teiuin of Gilmore, he found the business had been conducted negligently and wasteful I y. Shumaker had purchased an expensive bread cart and horse, and furnished a house for himself in Market-street, and was sporting a carriage and pair of handsome horres. Gilmore resolved to dissolve the partnership. Shumaker misrepresented the liabilities of the firm as being inconsiderable, while in fact he had involved the partnership in debts, between two and three thousand dollars in amount. On the dissolution, early in December, Shumaker took the Market-street bakery, under an engagement to pay the debts of the fiim, which he never did; but the payment of them fell on Gilmore; when Gilmore returned from the North he accounted to Shumaker for the expenditure, in articles provided for the business, of the $875 Gilmore had received from him ; but Gilmore neglected to ¡a|íe (,p |,js (jue bill. Gilmore, after a shoit lime, succeeded 'in getting from Shumaker I he bakery in Market-street, in pa 11 -satjsfa.cti0ti of the co|>artuersh'p debts which Gilmore had been compelled to pay, and also of the cost of the baking apparatus, which Gilmore had purchased at the North, and "permitted Shumaker to take, under his engagement to pay the hills drawn for the cost, but which Gilmore was compelled to take up. Shumaker then set up in the Grocery business on the Bay, and obtained credit to the amount of eight or nine thousand dollars. He removed from Market-street, and occupied an expensively furnished house in Kiug-sireet, and then removed to Nevv-sireet, keeping his carnage and horses, and one or more mistresses. He had one McKay as a partner, who. there was evidence, did not account for the pio-'ceeds of his sales. He sold to Ficken groceiies to the amount "of five hundred to one thousand dollars, which was paid to McKay, deducting the account of Ficken against Shumaker; which McKay, at fust, refused to allow. Soon after Shuma-ker engaged in the Grocery business, his creditors became uneasy, and some held hint to bail before the notes foi his purchases became due. Simons and Silcox became his bail. He secured Silcox by a confession of judgment. Silcox took also a confession of judgment for 01550, the amount of Shu-maker’s indebtedness to him. Being cautioned by information that Shumaker was selling off his stock at a saciifiee, and was paying some of his creditois by sales of Ins stock, and that the security of his judgment was put in jeopardy, Silcox had the balance of Shumaker’s stock in trade, and his furuituie and carriage and horses, sold by Miluor. The total nett sales amounted to $1,648; Silcox received about 01.400. This sum, together with 0500, which Shumaker liad paid to Silcox on ilie confession of judgment, Silcox accounted for, by shewing that he had applied the same in payment of tile debts of Shumaker to himself and others. Shumaker had bought Paul, and given 0500 for him. and, besides, Simons paid for him about 0450. Shumaker had no money except what he obtained by tlie sale of the groceries he. bought on credit. It was proved that he owed about 08.500. If fiom this amount be deducted the debts paid to Silcox and Simons and for Paul, near 03000, the balance is about 05,500. This balance is chargeable-with the sales by McKay, rent, expenses of the business, loss oil sales, and the peisonal expenses of Shumaker.,foi about a year before-his schedule was filed. In May or June, Shumaker left harleston and concealed himself from his creditors; during his absence a conespondence was kept up between himself and Simons, in reference to his discharge under the insolvent debtor's act, from the debts he owed. Simons kept Shumaker informed of the temper and movements of his creditors, as they might favor his discharge or otherwise, advised with Shumaker as to the preference to be given to Orangeburg or Charleston for his' application for discharge, and communicated the advice and opinions of the attorneys, whom Simons had retained in his behalf, respecting what should be inserted in his schedule, and the best mode of proceeding to elude the vigilance and opposition of his creditors in making the application. Shu-maker returned to the c;ty in Octob.-r; was arrested at the instance of Simons and Silcox, under a tax execution, and confined in jail. He sent for Messrs. Yeadon and Seymour, to consult them respecting his application for a dtschaige. Shu-maker also sent for Joseph Sampson, deputy sherilf and Clerk of the t’ity Court; when Sampson got to the jail, Seymour was writing out the schedule for Shumaker. In it were mentioned only the wearing apparel of Shumaker, Paul, subject to a mortgage to Simons for $341, and certain articles of furniture, also subject to a claim of Simons for $158, for board, and a few other items of little value. Shumaker called Sampson aside, and asked him if he signed that schedule, and if Simons had money, whether he could ever recover it; Sampson told him he could not. He said Simons had a large sum of money, $7,000, and a negro. Sampson advised him to disclose the matter to his creditors. Cohen was sent for, and came. The letters, offered in evidence, were brought by Shumaker from the room at Simons’ house, which Shu-maker had occupied when boardiug there. The further disclosure of Shumaker’s declaration was, at this stage of Sampson’s examination, objected to, on the ground that his declarations were not evidence against Simons. On this ground they were held to be admissible. At a subsequent stage of the case, the competency of the evidence was questioned, on the ground that the declarations of Shumaker to Sampson were not made in prosecution of the conspiracy, but after the design to defraud his creditors was abandoned by Shumaker; and so they were only confessions of Shuma-ker, which should not have been admitted to criminate Sim-ons. Sampson proceeded to relate his conversation with Shumaker. Shumaker said that Simons had told him the money could be saved, and, after he had sworn out, he could have the money and go into business. Simons suggested this to Shumaker while he was in business. Shumaker made an affidavit of the payment of $7,600 to Simons, in six sums, and at dates between the 18th March and 13th May, 1848; and that Simons had íepaid no part of that sum; and" besides, had Paul and furniture, together valued at $700, which Simons had converted to his own use. On the cross-examination of Sampson by defendant’s attorney, he said that one Haiue made an appointment to meet the wituess and Cohen in jail, with Shumaker. Haine offered to make an af{|¿avit of the amount deposited by Shumaker with Sirn-ons, if Cohen would give him $150, which Cohen refused to' ¿¡0_ Haine was in Shumaker’s room. He would tell all about it, but would not swear to it. He spoke of the amounts deposited with Simons. Haine did make an affidavit, but not about the deposit of money. In the examination in reply, the Attorney General offered in evidence tiie affidavit of Plaine, referred to, and against the objection of defendant’s attorney, it was admitted, as forming a part of the declarations of Utine in the conversation which the defendant’s attorney had, in part, brought out. The affidavit contained the statement of Haine, that Simons had told him, on die Till December, 1848, that he was not uneasy about Shumaker’s going away, since lie had money in his hands; that he, Haine, could prove the different amounts deposited with Si-mons by Shumaker, but he could not say how much they amounted to. Sampson testified, that a few days after Huine’s discharge, Simons told him that he was not uneasy about Shumaker’s return to town, because he had money enough to cover his liabilities for Shumaker.
    The mass of evidence is loo great to be reported in detail.
    it is only necessary for the purposes of the appeal, to state that in his Honor’s instructions to the jury, they were cautioned that the record should be noticed by them, only as evidence of the fact that Shumaker had applied for the benefit of the insolvent debtor’s act; and that the verdict could not, in any way, implicate Simons in the fraud of Shumaker. The jury found the defendants guilty.
    The defendant, Simons, appealed, and moved for a new trial, on the following grounds :
    1st. Because the record of conviction of Shumaker for fraud was not competent testimony in this case, and particularly that the suggestions and verdict thereon, should not have been read to the jury.
    2d. Because the confessions of Shumaker to Sampson ought not to have been received as evidence against Simons.
    3d. Because the affidavit of J. Q,. A. Haine was permitted to be read as evidence.
    4th. Because the verdict is not supported beyond the confessions of Shumaker, whose declara ions, even if admitted in evidence, were not entitled to credit, and so his Honor charged the jury.
    5th. Because the verdict was contrary to the evidence.
    
      Petigru & Pressley, for the motion.
    
      Hctyne, Attorney General, contra.
   Curia, per Frost, J.

It is not questioned that, when evidence lias been given which warrants the jury to consider whether the prisoner was engaged in the alleged copspiracy, and had combined with others for the same illegal purpose,any act done or declaration made by one of the party, iti pursuance and promotion of the common object, are evidence agaius't the rest. But what one of the party may have said, not in pursuance of the ¡dot, cannot be received against the others. On the trial of Hardy, a question arose as to admissibility of a letter, written by Thelwall and sent to a third person, not connected with the conspiracy, containing seditious songs, which the letter stated to have been composed and sung at a society, of which society the prisoner and writer of the letter were proved to be members. - The letter was held tobe inadmissible; on the ground that the writing of the letter was not an act done in pursuance of the conspiracy, and that the latter was a mere narrative of what had passed.

It is not material to consider whether after the production of the correspondence between Simons and Shumaker, and other preliminary evidence of a conspiracy between them to defraud the creditors of Shumaker, in the manner charged, the objection to admitting evidence of the conversation between Shumaker and Sampson, on the grounds that the declarations of Shumaker were not competent evidence to charge Simons, was properly overruled ; nor whether, after it appeared. from Sampson’s testimony, that what Shumaker said was not in promotion of the object of the conspiracy, the further disclosure of Shumaker’s conversation with Sampson, when no objection was made to receiving the evidence, was an erior, for which a new trial should be granted.. Even if the conversation were not improperly received in evidence, the jury should have been instructed to reject the declarations of Shumaker, as evidence against Simons, and to discard them fiotn consideration in deciding the question of his criminality. This the Circuit Judge omitted to do.

The Court is of opinion, that the affidavit of Haine was improperly admitted. On the cross examination of Sampson, . by the defendant’s attorney, for the purpose of discrediting him, he was asked if he had not offered a bribe to Haine to make an affidavit — Sampson said he had not; but that Haine, himself, had offered to make an affidavit of the amount which Shumaker had deposited with Simons, if Colren would give him one hundred and fifty dollars. Sampson further said, that Haine would tell all about it, but would not make an affidavit. He .did' make an affidavit, but not about the money. This affidavit was offered by the State, on the re-examination of Sampson, and was admitted, not as an affidavit, but as part of the declarations of Haine, in the conversation between himself and Sampson, which the defendant’s attorney had brought out.

In the.Q.ueen’s case, this question was submitted for the 0p¡u¡C)ri 0‘f t|)e Judges. If a witness for the prosecution, on his cross examination by the defendant’s attorney, should state that he had told (J. D. he was to be a witness against the prisoner, whether it would be competent for the piosecutor to go further in the re-examination, than might be neces-8,3ry to explain the expressions used by the witness', and his motive in telling C. D. that he was a witness: and to question the witness, generally, respecting the conversation he had had with (J. I). The Judges held the question to be incompetent; and declared the rule to be, that the counsel, on re-examination, had the right to ask all questions which might be proper to draw forth the motives of the witness and an explanation of the expressions of the witness, used in the cross examination, if they were, in themselves, doubtful ; but he had tio right to go furthei and introduce matter, new in itself, and not suited to explain the motives and expies-sions of the witness. 4nd a distinction was taken between a conversation which the witness may have had with a party to the suit, and with a third person. When, one party produces partial evidence of a conversation with the other party to the suit, the latter has a right to disclose the whole conversation. But the conversation of a witness with a third, person, is not, in itself, evidence against any party to the suit. It becomes evidence only as it may affect the character and credit of the witness; and the re-examination of the witness must be limited to such enquiñes as may put the Ocurt in possession of all which may affect his character and credit.

By this rule, the affidavit of Haine should not have been admitted on the re-examination of Sampson by the Attorney General. It was new matter, not pertinent to the subject of the defendant’s interrogation, whether Sampson had not offered a bribe to Maine, to swear that Shumaker had deposited money with Simons, nor tending to affect the character or credit of Sampson.

I am, besides, directed to express the opinion of the Court in favor of a new trial, upon the merits of the case. Simons and Shumaker are charged with a conspiracy to defraud the creditors of Shumaker, by secreting the sum of $7600, which Shumaker deposited with Simons, to be kept until Shumaker should obtain his insolvent discharge. The money, deposited with Simons, is the corpus delicti. If theie was no money deposited for the put pose alleged, the charge of conspiracy is at an end; and circumstances which may create suspicion against the defendants of having engaged in such a plot, are divested of any criminal character. The strongest circumstantial evidence to convict the accused of murder is unavailing, if it is not proved that some person was murdered.

The deposite of money by Shumaker with Simons, rests almost exclusively on the declarations of Shumaker. They were made to appease and ptopitiate Ins creditors, into whose power lm had committed lnmseli. by Ins own criminal conduct, and should be heard with the cautiousness and suspicion which attend on the confessions of an accomplice. Shumaker’s reckless extravagance and unprincipled character are admitted by all parties. His confessions to Sampson were made under the strong influences of resentment, fear and interest. After having long supported him in his career of extravagance and riot, Sunous and Silcox at length became alarmed : and it was at their instance that Shumaker was attested and imprisoned by his creditors. He was then, at last, in the power of his enemies, (as he termed his creditors) from whom he had long absconded, and the meeting with whom, it is shewn by his letters, was a subject of distressing apprehension. He had, now, to account for what he had done with goods, to the amount of nine or ten thousand dollars, which he had, in less than a year, obtained on credit. He had nothing to shew or to surrender that might appease hisangty creditors. Sampson was sent for, and while his attorney was preparing his schedule, he confided to Sampson the resource for the payment of his debts, in the possession of Simons. Cohen, the largest and most eager of his, creditors, was called in. By a calculation it was shewn that the amount said to he in Simons’ hands would pay all his debts, and give a surplus of two or three thousand dollars to Shumaker, if the money could be got from Sitnous. He then made an assignment of the deposite, and some other effects of little value, to Cohen, for the benefit of his credi-tois. By his affidavit, made at the same time, he specified the several payments to Simons, with their dates,amounting, between 11th March’ and 12th April. 3848, to near $700(3, and in all, to $7600. The receipt or posses.-ion of so large a sum of money, at the time of the alleged payment to Sim-ons, or at any other time, was not shewn by any evidence whatevei ; nor was it attempted to explain how it was obtained. He liad made rto large sales of stock, nor borrowed any money. No receipt or acknowledgment for the money by Simons was produced. Shumaker had no money or means, except what he obtained on credit. If, ftom the amounts thus obtained be deducted the debts proved to have been paid, and to this latter amount he added losses, the personal expenses of Shumaker, and of the business, it appears to be impossible that he could itave had so latge a sutn. It is not consistent with his reckless improvidence and piofligate life that lie should have hoatded so much money. In his correspondence with Simons; apparently the most confidential, no allusion is made to any funds entrusted’ to Simons. On the contrary, Shumaker’s letters express the warmest gratitude to Simons for his friendship and confidence, and his entire dependence on Simons; which comport, naturally, with a consciousness of ruin and danger, but cannot easily be reconciled with the belief that Shumaker was writing to a confederate, in whose charge he had left such ample resources to meet the claims of his creditors, or for future extravagance, if rescued from them. In his letters to Simons, he submits himself entirely to the government of Simons &Silcox, his bail, asking their consent to all his proposed movements. The acknowledgment and submission to such personal restraint, does not seem consistent with the independence which a party would exercise, whose bail were fully indemnified.

Besides Shumaker’s confessions, the only evidence to charge Simons with the receipt of any money for him, for the purpose of secretion from his creditors, is that to be collected from the correspondence and the testimony of Sampson, that Simons told him, he (Simons) was not uneasy about Shumaker’s return, because he had funds of Shu-maker to keep him harmless. The tenor of the correspondence has been already noticed. It exposes the co-operation of Simons with Shumaker to elude his creditors in procuring a discharge under the insolvent debtor’s Act, sufficient to support a charge of conspiracy to detain and secrete funds and effects of Shumaker from the claims of his creditors, if there was evidence that Shumaker had any money, or that it had been deposited with Simons. The’whole case must rest on the possession of Shumaker’s money by Simons. The evidence for such a charge against Simons appears to the court to be unsatisfactory.

The motion is granted.

Richardson, O’Neall, Evans and Wardlaw, JJ. concurred.

Motion granted.  