Appeal from the County Court of Stanislaus County.
The defendant, Charles Moore, and B. Doyle, were jointly indicted for the crime of robbery, alleged to have been committed by forcibly taking from the person of one Lewis Voyle a watch and gold and silver coin. The defendant had a separate trial, and was convicted, sentenced, and appealed. The appeal was taken on a bill of exceptions. Voyle's answer to the question put to him by the District Attorney was: " Doyle said Moore and himself robbed me, and Williams stood by the fence to watch and prevent any interruption."
The following is the exception mentioned in paragraph four of the opinion:
" One Rupley was sworn and examined on the part of the people, and was asked by the District Attorney the following question, viz.:
" Question--State whether the other two men, Doyle or Moore (not Williams), said anything about the absence of Williams when you first came home?
" Objected to as hearsay and incompetent. Objection overruled, and defendant Williams excepted."
The answer of witness Hill to the question mentioned in paragraph five of the opinion was: " I said to myself, they (including Williams) are thieves, from their action."
The defendant moved to strike out the answer as merely an opinion of the witness, which was not competent evidence, and immaterial in this action. The Court denied the motion.
The witness further stated, in answer to the question: " I have had experience as a detective; have been Constable for many years, and I thought they (including defendant Williams) did not come to their money honestly, and I wrote to Voyle to that effect, and to send me a warrant for the arrest." The defendant also moved to strike out the above, and the Court denied the motion.
The declaration of a co-defendant named in the indictment, but who is not on trial, cannot be received in evidence against the defendant on trial, without first proving a conspiracy or combination between them for the accomplishment of the crime charged in the indictment. (1 Greenl. Ev., Sec. 111.) And even then the acts and declarations of the co-defendant are competent evidence only when done and made during the pendency of the criminal enterprise and in furtherance of its objects. If they took place ata subsequent period, and are a narrative of past occurrences, they are not admissible. (1 Greenl. Ev., Sec. 111; Crowninshield's Case, 10 Pick. 497; U.S. v. Burr, 2 Burr's Trial, Robertson, 538; Apthorpe v. Comstock, 2 Paige, 488; People v. Bleecker, 2 Wheel. Cr. Cases, 56.)
The opinion of the witness Hill, that defendant was a thief, was not competent evidence. It was not a question of skill as to which the opinion of an expert was admissible. (1 Greenl. Ev., Sec. 440.)
J. H. Budd, for Appellant.
John L. Love, Attorney General, for Respondent.
OPINION By the Court:
1. No point is made upon the instructions, and we will, therefore, not consider them.
2. The transcript does not purport to contain all the evidence in the case, but the alleged errors relied upon are such as appear in the bill of exceptions. It is well settled that all omissions or uncertainties in a bill of exceptions are to be construed against the party presenting it--this is an obvious corollary to the rule that mere intendments here go in support of the judgment below, and that error is not to be presumed, but must affirmatively appear in the record.
3. The first error relied upon is, that the District Attorney asked of Voyle, the prosecuting witness, the following question, viz.: " Did Doyle or any other of the prisoners make a statement to you in relation to the alleged robbery, and, if so, what was done in consequence of such information?" An objection, and the only one, taken to this question by the prisoner was: " That no statement made by his co-defendants was admissible as evidence against the defendant Williams, no conspiracy or combination to commit said alleged crime having as yet been proven or attempted to be proven." This objection was overruled, and upon the record here we cannot discern that there was error in the ruling of the Court below in this respect. It may be, for aught that we know, that the defendant was present at the time Doyle made the statement inquired of, and in that view the statement of Doyle would be admissible in evidence. It is fairly to be intended that he was present then, otherwise the objection that he was not would have been taken.
4. The question, as asked of the witness Rupley, even if objectionable in itself, does not seem to have been answered by him, at least no answer appears in the record, and in that view the question asked and objection taken become mere abstractions.
5. The Constable, Hill, who had arrested the defendant, was asked by the District Attorney how he came to do so. This was objected to, because the reason why he did so was " immaterial and not competent evidence." The Court overruled the objection, and we are asked to reverse its ruling, without our being informed by the record as to the circumstances under which the question was asked. There are some questions, of course, which are per se objectionable and which are inadmissible under any supposable circumstances in judicial proceedings, but this is not one of those. Its admissibility or inadmissibility at the trial would rest upon a consideration of the other evidence given--and that, as we have said already, is not before us. It might be that the facts established in evidence, or sought to be, made the reasons or motives of the officer in effecting the arrest a proper subject of inquiry, with a view of elucidating some one or more of the attendant circumstances, which, for aught we know, may have been involved in the trial. If the propriety of the question asked is not upon the record open to inquiry here, as we think it is not, the answer, which was clearly responsive to the question, is not to be objected to either. Though somewhat strong in its language, it amounts to nothing more after all than that he made the arrest because he suspected that the prisoner and others were guilty of robbing Voyle.