
    Williamson v. The Commonwealth.
    (Absent Douglass, Gholson and Taliaferro, J’s.)
    1847. December Term.
    
    What facts are insufficient to establish a conspiracy between the prisoner and a third person to commit an offence, so as to lot in the declarations of such third person as evidence against the prisoner ; such declarations being made in the absence of the prisoner.
    
      Williamson alias North was indicted at the October term 1847, of the Circuit Court for Henrico and the City of Richmond. The indictment contained three counts. The first was for larceny, in stealing a slave named John Henry, the property of William H. Roy. The second was for feloniously carrying or causing to be carried the said slave from the City of Richmond to the county of Hanover, without the consent of the master, with intent to deprive the said master of the said slave. The third was for enticing and advising the said slave t0 abscond from his master, with intent to defraud and deprive the master of his slave. The plea was, not guilty.
    On the trial, the Commonwealth proved that on Sunday the 25th of July 1847, the prisoner got on the cars at Richmond, and when asked by the conductor of the train for his ticket, he replied that he had not taken any, as he expected two of his negroes to get on the cars some nine miles above the city; which negroes were to come from the county of Fluvanna. On arriving at the Hungary depot, nine miles from the city, the prisoner got out of the cars and looked around for the negroes, but not seeing them, he returned and said he would wait until he got to Taylorsville, and if the negroes did not join him there, he would go on to Fredericksburg, and wait for them at that place. The negroes did not appear at Taylorsville; and the prisoner then paid his passage to Fredericksburg, and went on to that place. On arriving at Fredericksburg, the prisoner remarked to the conductor of the train, that he might want to return the next day, if the negroes did not arrive in Fredericksburg; and requested the conductor to point him out to the depot agent at Fredericksburg, that he might secure his return at the usual rate of return passengers; and this was done.
    It was further proved that the agent of Roy, for hiring -out the negro John Henry, in the City of Richmond, having seen the negro in custody in the City of Richmond, on the evening of the 25th of July, was induced, by what he heard, to go the next morning to Fredericksburg, where he found the prisoner under arrest ; and the prisoner there stated to him, that a man by the name of Allen, was to have brought two negroes to the prisoner from Fluvanna, which negroes the prisoner had agreed with a man in Richmond named Win-free, to take to Alexandria, to a relative of said Winfree; that Winfree, who had employed him to take the two negroes, informed him that they were under a deed of trust, and that the object was to get them out of the way to prevent a difficulty which was likely to arise ; and that Winfree was to give the prisoner 200 dollars for the trip. The witness did not know whether the negro John Henry was one of those referred to by the prisoner; nor could he undertake to identify the persons alluded to by the prisoner as those found in custody in Richmond, of whom the negro John Henry was one.
    The Commonwealth then introduced another witness, who stated, that on Sunday the 25th of July, he was at the Junction in the county of Hanover, on the Richmond and Fredericksburg railroad, and about two o’clock his attention was directed to a white man in company with two negroes, whose name the witness afterwards ascertained was Allen; one of which negroes the prisoner in Court admitted was Roy's negro, John Henry. Witness advanced towards them, and held a conversation with the white man. The witness was then about to detail the conversation and declarations of the man Allen, when the prisoner, by his counsel, objected to the testimony, and moved the Court to exclude the declarations of Allen, on the ground that there was no evidence before the Court to prove a conspiracy or connection between the prisoner and Allen. But the Court overruled the motion and admitted the evidence; and the prisoner excepted.
    The jury found the prisoner guilty on all the counts of the indictment, and fixed the term of his imprisonment in the penitentiary at five years; and assessed a fine upon him under the second count, of 100 dollars; and the judgment of the Court was accordingly. Thereupon the prisoner applied to this Court for a writ of error, which was allowed.
    
      
      Gilmer, for the prisoner.
    
      The Attorney General, for the Commonwealth.
   Smith, J.

delivered the opinion of the Court.

It is the unanimous opinion of the Judges of this Court, that the decision of the Circuit Court, admitting the declarations of the man Allen to be given in evidence, was erroneous, there not being sufficient proof of a conspiracy or connection between him and the prisoner, to justify the giving of his declarations in evidence. The judgment of the Circuit Court is therefore reversed, and a new trial awarded; on which trial, the declarations of Allen are not to be given in evidence, unless a sufficient foundation is laid therefor.  