Opinion
No. 4648.
Submitted April 1, 1958.
Decided April 24, 1958.
1. While on the theory of agency a declaration made by a conspirator in furtherance of a conspiracy and prior to its termination may be used against the other conspirator, no declaration by a former conspirator subsequent to termination of the common enterprise may be admitted as evidence against the other conspirator.
2. Such subsequent declaration is mere hearsay; and where its veracity was denied by the other conspirator it could not constitute an adoptive admission.
COMPLAINT, charging the defendant with the unlawful use of a motor vehicle on October 14, 1957. RSA 263:82. He was found guilty after trial and sentenced.
The only evidence presented at the trial was the testimony of a police officer to certain declarations implicating the defendant made to the officer after the crime by a co-conspirator. The defendant denied any connection with the crime and the truthfulness of these declarations when they were read to him by the declarant in the presence of the officer.
Defendant's exception to the admission of the testimony of the witness relative to these declarations was reserved and transferred by Guertin, justice of the Nashua municipal court. It was agreed that if this testimony was inadmissible the defendant should be discharged.
Louis C. Wyman, Attorney General and Conrad Danais, county solicitor, for the State, furnished no brief.
Leonard and Leonard for the defendant.
A declaration made by a conspirator in furtherance of a conspiracy and prior to its termination may be used against the other conspirator. It is admitted on the theory that the declarant is the agent of the other and the admissions of one are admissible against the other. Delli Paoli v. United States, 352 U.S. 232, 237; State v. Clapp, 94 N.H. 62, 63; McCormick on Evidence 522.
However when, as is the case here, the common enterprise has come to an end, whether by accomplishment or abandonment, no subsequent declaration of a former conspirator will be attributed to another. A statement made under such circumstances constitutes a hearsay declaration which does not come within the orbit of any exception to the hearsay rule. State v. Clapp, supra, 64; State v. Larkin, 49 N.H. 36.
The defendant having denied the veracity of the declarations made by his former co-conspirator when confronted with them, they could not constitute adoptive admissions (IV Wig. Ev. (3rd ed.) s. 1071) and the question of their admissibility as such is not in issue.
The testimony of the State's only witness being inadmissible, the agreement is that the defendant shall be discharged and the order is
Complaint dismissed.
All concurred.