
    Toneff v. The State of Ohio.
    
      Criminal law — Evidence—Conversation with coconspirator not on trial inadmissible, when — Statements in furtherance of conspiracy admissible, when — Coconspirator’s declarations to unexpected visitor not in accused’s presence, admissible, when — Unlawfully manufacturing intoxicating liquors.
    
    1. State cannot show conversation with coconspirator not on trial on theory that statements were made by coconspirator while engaged in carrying out unlawful undertaking, unless statements were made in furtherance of conspiracy.
    2. In prosecution for manufacturing liquor, statements of co-conspirator, not on trial, to state witness, in desire to prevent exposure of secret enterprise and to enable himself and defendant to continue operation of still, held admissible as made in furtherance of conspiracy.
    3. Where still was operated by defendant and cocoñspirator in great secrecy and state witness suddenly surprised coconspirator in its o'peration, declarations of coconspirator, not on trial, upon discovery, were competent to show whether still was in his custody and for whom he was custodian.
    (Decided June 28, 1926.)
    Error: Court of Appeals for Ottawa county.
    
      Mr. Scott Stahl, for plaintiff in error.
    
      Mr. Don Bell, prosecuting attorney, for defendant in error.
   Williams, J.

The plaintiff in error, Mircho Toneff, was indicted, tried, and found guilty by a jury upon a charge of manufacturing distilled intoxicating liquor. The court thereupon sentenced him to a term of one to five years in the penitentiary, and to pay a fine of $2,000 and costs. This proceeding in error is brought to reverse that judgment.

It is claimed that the court below erred in permitting Sophia Stroschine, called on behalf of the state, to testify to certain conversations with one Dobrie Evanoff. We quote from the record the testimony complained of:

“Q. And when you visited him that day did you go out in to granary on that farm? A. Yes, sir.
“Q. And will .you tell us what you found there, if anything? A. Yes. The still. They were cooking whisky.
“Q. And I am going to indicate to you State’s Exhibit No. 1 and ask you if you ever saw that before? A. Yes, I seen it.
“Q. Where did you see that before? A. In the granary over to Will’s.
“Q. Will you tell us what happened in the granary when you went in and what you saw, and all? A. Yes, Mr. Dobrie Evanoff was a cooking, and I asked him if he was the owner of the—
“Stahl: I object to that conversation.
“Court: What is your objection?
“Stahl: Not in the presence of the defendant.
“Court: That objection is overruled.
‘ ‘ Stahl: Exception.
“Q. If you will continue, and tell us what happened. A. He was cooking whisky, and I asked him if that was his still, and he said, no, it was Mike Toneff’s. He said he was Mike Toneff’s hired man, he was cooking for him, and I says, ‘What will you do if you get caught?’ And he said he would run away, and I says, ‘Who is to pay your fine?’ and he says, ‘Mike Toneff.’
“Stahl: Move the answer be stricken out.
“Court: It may stand.
“Stahl: Exception.”

The defendant, Mircho Toneff, was jointly indicted with Angelo Angeloff and Dobrie Evanoff, but was being separately tried. The evidence tended to show that there was a conspiracy between the defendant and those jointly indicted with him to operate a still in a granary on the Basil Reau farm, at Maple Grove, Benton township, Ottawa county, Ohio, and that in pursuance of such conspiracy Dobrie Evanoff was at the time of the alleged conversation “cooking whisky” in that granary. Counsel for plaintiff in error claims that, as the conversation was not in the presence of the defendant below, the evidence was incompetent, for the reason that it was not shown to have been made either in furtherance of the conspiracy or under such circumstances as to be a part of the res gestee.

It is well settled in Ohio that the state cannot show conversations with a coconspirator, who is not on trial, upon the theory that the statements were made by the coconspirator while engaged in carrying out the unlawful undertaking, unless such statements were made in furtherance of the conspiracy. Goins v. State, 46 Ohio St., 457, 21 N. E., 476; Clawson v. State, 14 Ohio St., 234.

Is there evidence tending to show that the alleged statements were made in furtherance of the conspiracy?

The witness testified that she was making her first visit to her son, who lived on the Basil Reau farm; that while there she went into the granary and found Dobrie Evanoff cooking whisky; that thereupon the conversation quoted took place; that she remained about 20 or 30 minutes; and that Evanoff gave her a taste of the product of the still, which was white whisky. From this testimony the inferences naturally arise that Evanoff acted and spoke as he did to meet the emergency which had suddenly arisen, and that his frankness and hospitality were the result of a desire to prevent exposure in the secret enterprise in which he was engaged and to enable Evanoff and his coconspirators to continue the operation of the illicit still unmolested. The utterances of Evanoff were therefore in furtherance of the conspiracy.

Was this conversation a part of the res gestee9

We think the rule laid down in the case of Mimms v. State, 16 Ohio St., 221, applies. In that case the defendant was jointly indicted with one Brown, but was- being separately tried. A witness named Major Ross testified to certain declarations made by Brown at the time certain watches were found in his possession and custody. There was evidence in the case which tended to prove that the watches were in the possession of the deceased before he was murdered, that after the murder the defendant was at Brown’s and in communication with him, and that the watches belonged to the deceased and were found concealed under Brown’s barn. The conduct and declarations of Brown led to the discovery. It was held by the court that the testimony as to the declarations of Brown, made about the time when, and near the place where, the watches were said to be found, was competent, in connection with other proof, to aid the jury in determining whether or not Brown was made such custodian by the defendant. It is said in the opinion, in substance, that, even if it be conceded that the statements were not admissible as the declarations of a coconspirator, in view of the fact that the evidence to prove a conspiracy was slight, the declarations were admissible as a part of the transaction of discovery to show that the watches, though concealed, were in the custody of Brown, and to show for whom Brown was custodian, if any one.

In the instant case the still was operated under great secrecy. The witness came upon Evanoff suddenly in its operation and surprised him, and his declarations upon discovery were competent to show whether the still was in his custody, and for whom he was custodian. The court below did not commit error in admitting the conversation.

The record is free from prejudicial error, and the judgment will be affirmed.

Judgment affirmed.

Richards, P. J., and Young, J., concur.  