Marshall v. Faddis

Opinion by Mb. Justice Mitchell, To make the declarations of an alleged conspirator admissible in evidence against his co-conspirators, there must be preliminary proof of the joint purpose and action, not necessarily conclusive, but sufficient to submit to the jury on that fact; and the declarations so admissible must have been made during the pendency of the conspiracy: 1 Greenleaf on Evidence, sections 110, 111. At the time of the offer made by the appellant there was no evidence before the court of a conspiracy by the defendants, and the conspiracy charged was admittedly completed and' at an end by the death of the testator. It is argued that the declarations were at least evidence against the party making them, and should have been admitted to that extent. But the offer was general as to all the defendants. It was clearly inadmissible generally, and no separation was made. “ Sometimes for the sake of convenience the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this rests in the discretion of the judge, and is not permitted except under particular and urgent circumstances: ” 1 Green-leaf, sec. 111. Judgment affirmed.