Christiancy J.
The charge against the defendant, Pitcher, was for receiving, buying and concealing thirty-five fleeces of wool, the property of one Graves, knowing the same to have been stolen.
On the trial one Newman testified that he, the witness, and Samuel Reed (the defendant not on trial) stole the fleeces of wool from the barn of Graves, on the night of the 4th day of July, put the same into Reed’s wagon, and drove in a circuitous route to the house of the defendant, Pitcher, stopping in the road opposite his house and witness remaining in the wagon; that this was about one or two o’clock on the morning of the 5th of July; that Reed got out of the wagon and went in, and when he came out, defendant, Pitcher, came out with him, having on only his shirt and pants, and being bareheaded and barefooted. That they came out near the gate, and Reed handed Pitcher the wool, who carried it in on the east side of the house, but, after they passed the corner of the house, witness could not see where they went. Reed also took a load of the wool, and so on till they took it all out.
That Reed and Pitcher had a little conversation, but witness did not know what it was; he did not see where they took the wool; he never saw it again, and knew nothing more of it except what ivas told him by Reed.
There was also evidence tending to show that Pitcher sold the wool on the 20th and 28th of July.
Newman was asked for what purpose he and Reed left the wool at Pitcher’s. To this, exception was taken, but the witness was allowed to answer. We think the question was relevant and admissible, and if it had not been so, there was no error, as the question elicited no evidence, [403]*403except that witness knew of no arrangement with Pitcher except what Reed told him, without stating what it was.
But the same witness was afterwards allowed,, in answer to other questions duly objected to, to state what Reed told him after leaving the wool at Pitcher’s, and acts of Reed in reference to the matter, from which it appeared in substance that on the way home, after leaving the wool at Pitcher’s, Reed told witness that Pitcher would secrete it among his wool and would dispose of it for them when he did his own, and that they would have one-third each — that witness and Reed ought to have more but that Pitcher would probably want a third — that some ten days after this, Reed said something to witness about some sheep and wool, and said he would like to have some money pretty soon, and wished Pitcher would sell the wool. About ten days after the wool was left at Pitcher’s, witness saw Reed and Pitcher together by themselves, but don’t know what the conversation was — saw them together after that time. That from two to four weeks after the wool was left, Reed paid witness about seventy-five dollars which he represented to be for witness’ share of the wool; Reed figured the amount and represented it to be one-third of the amount for’ which the wool had been sold. Exceptions were taken in due form to all this testimony.
The court charged the jury upon this point that if they believed the statements of Newman as to the delivery of the wool to Pitcher, and his receipt of the same for the purpose of concealing and disposing of it, on the request or by the understanding of Reed, then the statements and acts of Reed testified to in the case, from that time up to the disposition of the wool by defendant, were competent evidence. This testimony of Newman and this charge raise the main question in the case. The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common [404]*404enterprise, or while it is still in progress, is evidence against all the parties to it. But after the common purpose or enterprise has been fully completed or terminated, the statements of one or more of them, in reference to any things connected vjith that j)ast transaction, become as to the others, res inter alios, mere hearsay, neither binding upon nor evidence against any of the others, for the reason that they are no longer supposed to be acting with one common design, and one is in no sense the agent of the other.
The common design or concert in a common enterprise is the only basis for the admission of such statements. But like most other facts this is not required to be established by positive proof. It may be and generally is supported only by circumstantial evidence. And it is sufficient that there be evidence tending to establish the fact, and from which the jury may fairly infer it. The weight of the evidence upon this, as upon the other facts in the case, is for the jury.
Independent, then, of the statements of Reed (which upon the question of their admissibility are to be excluded), was there evidence in the cause fairly tending to show that Reed and Pitcher were engaged in a common criminal enterprise, Avith reference to this wool, which Avas yet in progress or uncompleted when those statements Avere made?
The only evidence that can be claimed to have had such tendency is that of Pitcher’s receiving the avooI at the time of night and under the circumstances mentioned by NeAvman, and his conversation with Reed at the time, the purport of Avhich is not known. That this evidence had a strong tendency to show that Pitcher received the wool with the guilty knowledge that it had been stolen, Avill not be questioned. And as it would be unreasonable to infer that Reed and Newman were stealing the avooI out of pure benevolence toward Pitcher, the tendency of the evidence was to show that [405]*405tlie enterprise was for the common benefit of the three; and that it was to be in some way disposed of for this purpose. It was not a kind of property which could be used or enjoyed in its then present shape. The evidence, it is true, is not such as absolutely to exclude the hypothesis that Pitcher might have purchased it of Reed, and paid or agreed to pay for it such price as to give each a share of the adventure. But, as Newman, who was there, knew or heard nothing of this kind, and no evidence of the kind appears, it can 'not be said that the evidence tends at all to prove such sale to Pitcher; on the contrary, much the more natural inference, it seems to me, is either that the wool was to be sold by Pitcher for the common benefit, or kept for the joint benefit of all, to be disposed of by Reed or Newman on their joint account, when a favorable opportunity should occur; and in either case the inference to be drawn, and, therefore, the tendency of the evidence, would be to show that the common enterprise was to continue until the wool should be sold and the proceeds distributed. As no statements of Reed after the distribution of the proceeds were given in evidence, and the court charged the jury, in effect, that no statements of Reed, made after the disposition of the wool by Pitcher, could affect him, I think there was no error upon this point.
There was evidence tending to show that defendant, Pitcher, some time after the sale of the wool, and before either of them had been prosecuted, was anxious that Reed should run away. And a witness was allowed under objection to testify that he (the witness) drew up a note for Reed, payable to defendant, Pitcher, for fifty dollars, just before Reed did actually leave, which was signed by said Reed, and left with the brother of Pitcher, who was present when it was drawn. But there was no evidence tending to show that the note [406]
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Christiancy J.
The charge against the defendant, Pitcher, was for receiving, buying and concealing thirty-five fleeces of wool, the property of one Graves, knowing the same to have been stolen.
On the trial one Newman testified that he, the witness, and Samuel Reed (the defendant not on trial) stole the fleeces of wool from the barn of Graves, on the night of the 4th day of July, put the same into Reed’s wagon, and drove in a circuitous route to the house of the defendant, Pitcher, stopping in the road opposite his house and witness remaining in the wagon; that this was about one or two o’clock on the morning of the 5th of July; that Reed got out of the wagon and went in, and when he came out, defendant, Pitcher, came out with him, having on only his shirt and pants, and being bareheaded and barefooted. That they came out near the gate, and Reed handed Pitcher the wool, who carried it in on the east side of the house, but, after they passed the corner of the house, witness could not see where they went. Reed also took a load of the wool, and so on till they took it all out.
That Reed and Pitcher had a little conversation, but witness did not know what it was; he did not see where they took the wool; he never saw it again, and knew nothing more of it except what ivas told him by Reed.
There was also evidence tending to show that Pitcher sold the wool on the 20th and 28th of July.
Newman was asked for what purpose he and Reed left the wool at Pitcher’s. To this, exception was taken, but the witness was allowed to answer. We think the question was relevant and admissible, and if it had not been so, there was no error, as the question elicited no evidence, [403]*403except that witness knew of no arrangement with Pitcher except what Reed told him, without stating what it was.
But the same witness was afterwards allowed,, in answer to other questions duly objected to, to state what Reed told him after leaving the wool at Pitcher’s, and acts of Reed in reference to the matter, from which it appeared in substance that on the way home, after leaving the wool at Pitcher’s, Reed told witness that Pitcher would secrete it among his wool and would dispose of it for them when he did his own, and that they would have one-third each — that witness and Reed ought to have more but that Pitcher would probably want a third — that some ten days after this, Reed said something to witness about some sheep and wool, and said he would like to have some money pretty soon, and wished Pitcher would sell the wool. About ten days after the wool was left at Pitcher’s, witness saw Reed and Pitcher together by themselves, but don’t know what the conversation was — saw them together after that time. That from two to four weeks after the wool was left, Reed paid witness about seventy-five dollars which he represented to be for witness’ share of the wool; Reed figured the amount and represented it to be one-third of the amount for’ which the wool had been sold. Exceptions were taken in due form to all this testimony.
The court charged the jury upon this point that if they believed the statements of Newman as to the delivery of the wool to Pitcher, and his receipt of the same for the purpose of concealing and disposing of it, on the request or by the understanding of Reed, then the statements and acts of Reed testified to in the case, from that time up to the disposition of the wool by defendant, were competent evidence. This testimony of Newman and this charge raise the main question in the case. The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common [404]*404enterprise, or while it is still in progress, is evidence against all the parties to it. But after the common purpose or enterprise has been fully completed or terminated, the statements of one or more of them, in reference to any things connected vjith that j)ast transaction, become as to the others, res inter alios, mere hearsay, neither binding upon nor evidence against any of the others, for the reason that they are no longer supposed to be acting with one common design, and one is in no sense the agent of the other.
The common design or concert in a common enterprise is the only basis for the admission of such statements. But like most other facts this is not required to be established by positive proof. It may be and generally is supported only by circumstantial evidence. And it is sufficient that there be evidence tending to establish the fact, and from which the jury may fairly infer it. The weight of the evidence upon this, as upon the other facts in the case, is for the jury.
Independent, then, of the statements of Reed (which upon the question of their admissibility are to be excluded), was there evidence in the cause fairly tending to show that Reed and Pitcher were engaged in a common criminal enterprise, Avith reference to this wool, which Avas yet in progress or uncompleted when those statements Avere made?
The only evidence that can be claimed to have had such tendency is that of Pitcher’s receiving the avooI at the time of night and under the circumstances mentioned by NeAvman, and his conversation with Reed at the time, the purport of Avhich is not known. That this evidence had a strong tendency to show that Pitcher received the wool with the guilty knowledge that it had been stolen, Avill not be questioned. And as it would be unreasonable to infer that Reed and Newman were stealing the avooI out of pure benevolence toward Pitcher, the tendency of the evidence was to show that [405]*405tlie enterprise was for the common benefit of the three; and that it was to be in some way disposed of for this purpose. It was not a kind of property which could be used or enjoyed in its then present shape. The evidence, it is true, is not such as absolutely to exclude the hypothesis that Pitcher might have purchased it of Reed, and paid or agreed to pay for it such price as to give each a share of the adventure. But, as Newman, who was there, knew or heard nothing of this kind, and no evidence of the kind appears, it can 'not be said that the evidence tends at all to prove such sale to Pitcher; on the contrary, much the more natural inference, it seems to me, is either that the wool was to be sold by Pitcher for the common benefit, or kept for the joint benefit of all, to be disposed of by Reed or Newman on their joint account, when a favorable opportunity should occur; and in either case the inference to be drawn, and, therefore, the tendency of the evidence, would be to show that the common enterprise was to continue until the wool should be sold and the proceeds distributed. As no statements of Reed after the distribution of the proceeds were given in evidence, and the court charged the jury, in effect, that no statements of Reed, made after the disposition of the wool by Pitcher, could affect him, I think there was no error upon this point.
There was evidence tending to show that defendant, Pitcher, some time after the sale of the wool, and before either of them had been prosecuted, was anxious that Reed should run away. And a witness was allowed under objection to testify that he (the witness) drew up a note for Reed, payable to defendant, Pitcher, for fifty dollars, just before Reed did actually leave, which was signed by said Reed, and left with the brother of Pitcher, who was present when it was drawn. But there was no evidence tending to show that the note [406]*406ever came to the defendant’s hands, or that he knew of its existence, or that he paid any money upon it. This was certainly no evidence against the defendant without connecting him with it; and its admission might have been error had it been allowed to go to the jury; but the Court charged the jury that the fact of signing the note is of no import or consequence unless the same reached the defendant. This, in effect, took the evidence from the jury.
Testimony was allowed to be given that Reed was accused of the offense, that he went away and was gone some time, that when he returned he kept concealed and endeavored to -evade the officers. To these matters exceptions were taken. The bearing of this evidence upon the defendant was very slight, but, taken in connection with other testimony going to show defendant’s anxiety that Reed should run away, I am inclined to think there was no error in its admission.
The prosecution was allowed to prove, under objection, that an officer on going to defendants’ house about eleven o’clock at night to serve a subpoena upon him, knocked at the door for some time without effect, and, failing in this, went to a window and rattled it, when, after some time, defendant’s wife called out and asked who was there and what he wanted; and, the officer having answered and told his business, she told him her husband was not at home, but was gone to Ohio to buy cattle. He finally persuaded her to strike a light, showed her the subpoena, and gave her a copy, through the window. Proof was also given that the defendant was in the house in bed at the time; that another man who was in bed in the same house heard the whole proceeding; that 'the next day Pitcher went to Adrian and falsely stated that he had just come in on the cars from Ohio. I see no legal objection to this testimony. It tended to show that he must have heard all that took place at his [407]*407house while the officer was there; and that he was in fear of arrest, which could ordinarily arise only from a consciousness of guilt.
There was no error in allowing the witness, George Morton, who had been at defendant’s house and seen the fleeces of wool, represented to have come from defendants’ sheep, to testify as to the kind and weight of the fleeces.
It had a tendency, in connection with the other evidence, showing the kind of wool sold by him, to show that the stolen wool was among that sold.
The charge of the court was in accordance with the views I have expressed.
I think there is no error apparent upon the record; that. it should be certified to the Circuit Court for the county of Lenawee that there is no error in the proceedings, and that judgment should be given .in that court upon the verdict.
Martin Ch. J. and Cooley J. concurred.
Campbell J.
The chief error complained of in this case is the admission of the , statements of Reed, one of the thieves, to his associate, Newman, concerning the disposition to be made of the stolen property by Pitcher. These statements were made in Pitcher’s absence, and after he had received the goods. If true, they tended to show that he was, to dispose of the property, and pay over two-thirds of the proceeds.
I have very great doubts whether direct and legal proof of such an arrangement would render any statements of the other parties, who were merely passive, and had no further parts to perform, evidence against Pitcher, who was to be the sole actor. But without examining into this question, I have not been áble to [408]*408perceive the slightest proof in the case tending to show that Pitcher had any further acts to perform on behalf of the rest, after the goods were traced into his possession, and therefore there was no ground for receiving the statements, which were only admissible on the theory of a continuing conspiracy. Newman swore positively that he had no knowledge of any such purpose, except from the subsequent statements of Reed. The reception of stolen goods has no necessary tendency to prove a purpose to sell on commission, any more than a purchase for cash. Neither the law nor commón experience can raise any presumption concerning any specific rule of business in such cases. No bargain is proved, and if one is assumed, it is a pure conjecture, which, without the statements of Reed, would have had no foundation whatever.
It seems to me that to admit this evidence was equivalent to proving the conspiracy by the statements, and then basing their admissibility on the conspiracy, which was not otherwise established.
I think there was error in this, and that the verdict should be set aside and a new trial granted. IJpon the other points I concur with my brethren.