People v. Aleck

Morrison, C. J.: The judgment-in this case will have to be-reversed, as there [138]is no evidence in the transcript showing that the crime was committed in the county of Amador. Whether this omission was simply the result of carelessness in preparing the bill of exceptions, or a failure on the part of the prosecution to prove on the trial where the crime was committed, is immaterial; in either case the record which purports to contain all the evidence shows a- defect in the proof which is fatal to the judgment. “ The plea of not guilty puts in issue, all the material averments in the indictment, including that of the locus delicti. * , * * In the trial of a criminal cause, it is so well understood in practice that it is incumbent on the prosecution to prove the locus delicti, as laid in the indictment, that we can but express our surprise that, through inadvertence or otherwise, this plain requirement is so often neglected by the District Attorney, thereby retarding the administration of justice, and imposing upon the county the expense of another trial, and upon the courts a great additional labor.” (The People v. Bevians, 52 Cal. 470. See note to opinion.)

2. But there are other points in the case which it is proper for us to notice. The Court erred in admitting in evidence the confession of Sam Dodge. It is true that he was jointly indicted with the defendant Jim Aleck, and the evidence in the case shows that he was present, aiding in the commission of the homicide; but it was a clear violation of the rules of evidence to admit on the trial of a confederate his confession, made after the act was fully accomplished. Speaking of the acts and declarations of confederates it is said: “ Care must be taken that the acts and declarations thus admitted, be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they are, as we have just seen, to be rejected.” (1 Green! Ev., Sec. 111.) The rule is clearly stated by another high authority- as follows: “And it should be observed in reference to this evidence, that the declarations and confessions of one of the conspirators, made after the offense has been fully committed, and the transaction is fully over, can not be given in evidence against another conspirator; because, the object of the combination being ac[139]