State v. Green

The opinion of the court was delivered by

The appellant was tried and convicted of the crime of arson at the July term, 1893, of the Court of General Sessions for Laurens County, and after having been duly sentenced, has appealed therefrom. • His grounds of appeal, ten in number, will be set out in the report of the ease, and hence will not be reproduced here. After a careful examination of these suggestions of error, we find that two are well taken, thereby necessitating a new trial in the court below.

1 The first of these is raised by an exception at the trial to the competency of the confessions of two defendants, of whom the appellant was not one, made after the crime had been fully consummated, to affect the accused, who was not a party to such confession, on the alleged ground, as ruled by the Circuit Judge, “that if a conspiracy is established, what one says is the testimony of all.” Such is not the rule of law. The Circuit Judge for the moment overlooked *330the marked distinction between the acts and declarations of parties to a conspiracy before the object is actually reached, on the one side, and the acts or declarations of any party to such conspiracy made after the object of the conspiracy is reached, on the other side. There is no doubt but that when persons have banded themselves together to accomplish some crime, every word or act of each conspirator, in furtherance of such accomplishment of the crime, binds every other of such conspirators. But it is equally true that when once a conspiracy is ended, no such ligament binds each coconspirator so that a confession of any one or more of such coconspirators binds all who conspired. The confession binds him who makes it, but not his fellow-conspirators. State v. Dodson, 14 S. C., 628; State v. Brown, 34 Id., 46; 1 Greenl. Ev.. § 333.

2 The next error below consisted in allowing Mr. Thomas L. Johnson, a witness for the State, to give his opinion that a track in dispute was made by the accused, Charles Green, against the objection of his counsel. The witness was evidently intelligent and conscientious. It was perfectly competent for him to trace minutely before the jury the peculiarities of the foot of the accused, and also how these peculiarities were reproduced in the track the witness saw. Beyond this, we fear, he ought not to have been required to go; we meau, in expressing his opinion that the track was made by Green. Such an inference should have beeu left to the jury. 1 Greenl. Ev., §440; State v. Senn, 32 S. C., 400.

We do not deem it our duty, having been forced to the conclusion that a new trial must be had, to discuss the other alleged objections of the appellant, especially as we find no error there.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the cause be remanded, to the end that there may be a new trial of the defendant, Charles Green.

I concur in the result only, as I am *331not now prepared to commit myself upon the questions raised by the first and second exceptions.