
    Dilcher v. State.
    1. Section 6804, Kevised Statutes, providing that, “Whoever aids, ahets, or procures another to commit any offense, may he prosecuted and punished as if he were the principal offender,” was not intended to introduce into our criminal practice any new rule of evidence.
    2. On the trial of one indicted for subornation of perjury, the statements of the principal offender, made in the absence of the prisoner, that the latter had been attempting to hire or had hired him to commit the perjury, are inadmissible, although they tend to prove the principal’s guilt of the perjury charged, and are made immediately prior to the commission of the perjury.
    
      3. In such case, however, statements oí the principal, in the absence of the prisoner, immediately prior to the perjury, tending to show the former’s disbelief in the facts falsely sworn to, are admissible to show the state of his mind and belief concerning the subject of his testimony.
    ERROR to the Court of Common Pleas of Athens county.
    At the May term of the court of common pleas of Athens county A. D. 1882, William Dilcher, the plaintiff in error, was indicted for procuring, persuading and suborning James M. Stewart, to commit perjury. He was tried and convicted. The judgment of conviction was reversed by this court and the cause remanded for a new trial. Dilcher v. State, 39 Ohio St. 130. He was again convicted, and to reverse the judgment of conviction the present proceeding is prosecuted.
    Upon the last trial there was evidence tending to prove the following facts: That the testimony of Stewart upon which the charge of perjury was predicated, was given in the form of a deposition taken in the office of one Drown in Athens county, on the 5th day of February 1881, before a notary public, to be used on the trial of an action pending in Meigs county, in which Mary Martin, as plaintiff, was claiming against Henry Dilcher, defendant, to be the widow of John Martin (known also as Colonel Martin), and was claiming and seeking to recover dower out of lands of such defendant; that the evidence relied upon to establish the death of Colonel Martin, was his absence for more than seven years without tidings of him ; that1 Stewart had testified that he had seen and conversed with Colonel Martin in Montana territory in September 1880, and upon this statement the perjury was predicated; that the prisoner had entered into a conspiracy with one Bowers to hire Stewart to commit the perjury charged ; that the prisoner had procured and suborned Stewart to commit it; that Stewart had been convicted upon his own confession of the perjury charged.
    Upon the trial, Charles IT. Grosvenor, an attorney who was assisting in the prosecution of the prisoner, took the stand as a witness for the state, and over the objection of the prisoner was permitted to testify as follows: “ I have no recollection of seeing James M. Stewart before the Saturday on which the depositions were taken. I first saw him from eleven to half-past eleven o’clock in the forenoon at Brown’s office. Henry T. Brown, Stewart, Dilcher (the prisoner) and myself were there. I called Stewart into the back office and shut the door. Dilcher was not in the back office. I said to Stewart I was afraid he was going to get into trouble; that I wanted to give him some information ; that I was afraid he was being made a victim. I said this case had been continued on a statement that Colonel Martin was at Lincoln, Nebraska ; that we had letters showing that no such man was there. I said to him : If you swear to that you will swear to what is not true. He said he knew nothing about Martin ; that he was not going to swear to it; that he might have made a good arrangement, but Avas not going to have his deposition taken. He said: They have been fooling around me for some time, and at last they have a good arrangement made, but I am not going to have my deposition taken noAV. I said: I have a dispatch from Mr. Vorhes ; Dilcher was trying to raise two hundred dollars on his check, and that is the reason I said what I did to you.”
    The prisoner by his counsel moved the court to withdraw the foregoing testimony from the jury, Avhieh the court refused to do and the prisoner excepted.
    To this action of the court error is assigned, and for that, with other alleged errors, this proceeding is prosecuted to reverse the judgment below.
    
      E. A Guthrie, with whom Avere De Steiguer c& Jewett, for plaintiff in error.
    
      G. Ii. Grosvenor, and Emmett Thonvplcms, for defendant in error.
   Owen, J.

Did the court below err in admitting, or refusing to withdraw from the jury, the testimony of Gros-.venor %

The plaintiff in error maintains that the declarations of Stewart, in his absence, are but hearsay, and are inadmissible to establish, as against him, any fact material to the issue.

The state maintains' on the other hand, that as she was bound to prove Stewart’s guilt of the perjury, any evidence which would directly tend to establish this fact upon his separate trial, was admissible against the prisoner. It is further contended by the state, that as the giving of his deposition by Stewart was one of the substantive facts to be shown, what he did in preparation for, and leading to, this fact, was competent to be given in evidence, and that the interview between Grosvenor and Stewart was so immediately connected with the giving of his deposition, and so far characterized his conduct, as to become part of the res gestee.

There are some statements embraced in this interview which were admissible as tending to prove the state of Stewart's belief concerning the matters testified to by him, and which furnished the predicate of the perjury charged. It was necessary to prove that Stewart’s testimony, that he had seen Colonel Martin in Montana, was false to his knowledge.

Grosvenor said to him: If you swear to that, you will swear to what is not true.” His answer was that he knew nothing about Martin; that he was not going to swear to it.

These statements reflected upon the state of his belief— the condition of his mind — upon the very subject of the alleged perjury immediately prior to its commission. So far as his declaration tended directly to show the then present state of his belief concerning the subject of the perjury charged, it was, upon a very familiar principle, admissible in proof of his guilt. 'It related to a then existing substantive fact which the state was bound to prove and was not merely hearsay. 1 Greenleaf Ev. § 108; Queen v. Pym, 1 Cox’s Crim. Cases, 339.

But among the declarations objected to are some which did not tend either to show the state of Stewart’s belief; to be in preparation for, or lead up to, the act of perjury; nor did they accompany or characterize any act which directly pointed to his guilt. Grosvenor reports him as saying: “that he might have made a good arrangement. . they have been fooling around me for some time, and at last they have a good arrangement made.” Yiewed in the light of the context these statements must have been understood by the jury as involving the prisoner (with Bowers) in some transaction of the past, looking to the hiring and suborning of Stewart to commit the perjury charged. They were at best but narrations of supposed transactions of the past, and if they were admissible at all against the prisoner, it must have been upon the ground contended for by the state, that as they involved confessions or admissions by Stewart pointing to his subornation by the prisoner, they tended to establish Stewart’s guilt and lienee were admissible against the prisoner. In support of this view, the state cites us to Revised Statutes, section 6804, which provides that: “ Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.” The claim is, that any evidence which would be competent to prove Stewart’s guilt, if he were upon his separate trial, is admissible against the prisoner.

The purpose of section 6804 was to hold an accessory before the fact equally guilty with the principal offender, and not to introduce into our erirpinal practice a new rule of evidence.

To permit the principal offender, by his mere private declarations or confessions, made in the absence of the accused, without the sanction of an oath, without opportunity to cross-examine him, without opportunity for the jury to observe his manner or deportment, or to judge of his motives, his means of knowledge, or his relation to the accused, whether hostile or friendly, to bind the latter (when such declarations or confessions do not tend to establish or characterize any substantive act or fact in issue) would seem, at first view at least, to require the support of strong authority.

We ai’e not without the light of adjudication to aid us in this inquiry. In the case of The Queen v. Read, 1 Cox’s Crim. Law Cases, 65, the prisoner was on his separate trial for procuring one Simpson feloniously to destroy a vessel belonging to one Page. The prosecution offered in evidence the statements of Simpson made in the absence of the prisoner. Objections were made which were sustained ; Maulé, J'., remarking : “I have no objections to admit anything that Simpson did, but I cannot receive evidence of what he said. When two persons are tried together, what one of them has said is evidence, because he is on trial, but it is evidence only against him. If Simpson were jointly indicted with the prisoner, I could not of course reject his conversations, but they clearly would not be admissible as against tho latter.”

The case of Queen v. Pym, cited above, furnishes a strong illustration of the principle involved in this discussion, and of the distinctions above pointed out. The prisoner was on trial as an accessory to murder committed by one Hawkey. The prosecution offered to prove that Hawkey, while talking of the deceased to a friend, on the day of the murder, but before its commission, said (in the absence of the prisoner): “I will shoot him as-1 would a partridge.”

Erle, J., received the statement, remarking that he admitted that the confession of a principal is no evidence against the accessory, adding: “But this statement is an act indicating malice aforethought in Hawkey, and that is a fact which the jury have to ascertain. The intention of a person can only be inferred from external manifestations, and words are some of the most usual and the best evidence of intention. It is not a declaration after the act done narrating the past, but it shows the mind of the party.” See Reg. v. Hansill, 3 Cox Crim. Cas. 597. In Rex v. Turner, 1 Moody’s Cr. Cas. 347, it was held that: On an indictment against an accessory, a confession by the principal is not admissible in evidence to prove the guilt of the principal.” In Ogden v. State, 12 Wis. 532, it was held that: “ To sustain an indictment against a person charged as an accessory before the fact to the commission of the felony, it is necessary for the state to establish the guilt of the principal felon, as well as that the defendant was an accessory ; and confessions of the principal that he committed the crime, are not admissible as evidence of his guilt, upon the trial of the accessory ; such confessions being, as- to the latter, only hearsay.” It was held in Sharpe v. State, 29 Ohio St. 263, that: “ On the trial of a person indicted under the 36th section of the crimes act (S. & S. 266) for procuring another to commit an offense, it is not competent to prove the declarations of the principal offender, made after the completion of. the offense, for the purpose of showing the guilt of the procurer.”

Greenleaf, in his work on evidence, vol. 1, § 232, concludes a discussion of this question with this proposition: “ In fine, the declarations of a conspirator or accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.”

The principles declared above are supported by the following authorites: Fouts v. State, 7 Ohio St. 471; Rufer v. State, 25 Ohio St. 472-476; State v. Newton, 4 Harrington (Del.) 567; Patton v. State, 6 Ohio St. 468; Priest v. State, 10 Neb. 393; Gove v. State, 58 Ala. 391; State v. Thibeau, 30 Vt. 100. The case of State v. Rand, 33 N. H. 216, relied upon by the state, is not in conflict with these cases.

The statements of Stewart, so far as they justify the inference that the prisoner had been proposing or making some “ good arrangement ” with him concerning his testifying, were at best but the narration of something in the past, and are not within any of the exceptions to the rule which excludes mere hearsay testimony.

The concluding observation of Grosvenor to Stewart: I had a dispatch from Mr. Yohres ; Dilcher was trying to raise two hundred dollars on his check, and that is the reason I said what I did to you,” was not responded to by Stewart; it was not an accusation against Stewart; it was nothing that called for a response from him ; it was at best something Grosvenor had heard; it affected Dilcher alone, and that to his prejudice, and was too palpably inadmissible to justify serious discussion. These statements, being not only inadmissible, but plainly prejudicial to the prisoner,'should have been excluded, and in permitting them to go to the jury there was error, for which the judgment will be reversed.

We find no other errors in the record to the prejudice of the plaintiff in error.

Judgment reversed.  