Defendants were jointly tried and convicted of murder in the first degree. This appeal is by defendant Alex Wysocki. The people claim that as the result of a conspiracy between the defendants, and for a consideration of $500 paid by Wysocki to Sams, the latter shot and killed the wife of the former. The motive for the crime was the alleged infatuation of Wysocki for another woman who had been in his employ. In consummating the crime it was arranged that Wysocki would take his wife in an automobile, that Sams in another automobile would overtake and crowd Wysocki to the curb for the apparent purpose of consummating a hold up and incident thereto would shoot Mrs. Wysocki. The killing was carried out on May 28, 1932, substantially as planned. Defendants were arrested in August following. Sams subsequently made two alleged confessions, each of them being practically in accord With the foregoing statement. Later Sams disavowed the confessions; and along with Wysocki entered a plea of not guilty.
Referring to an incident which antedated the murder nearly three months, the assistant prosecuting attorney in his opening statement said:
"We will show you that * * * the defendant Wysocki reported to the police that he had been held up and that, I believe, $1,800 had been taken from him. We will show you that he made a claim upon that to the insurance company and was paid. We will show you that that was not a hold up, but a fake hold up."
Subsequently the prosecution offered testimony in support of the above-quoted statements; and such testimony was received over the objection that it was too remote, not relevant, not connected with the crime charged, prejudicial, and that it tended "to *Page 54 show an entirely different offense." We think this constituted reversible error. Careful consideration of the record reveals nothing which in any tangible way connects the "fake hold up" with the crime with which defendants were charged or with the alleged conspiracy between defendants to commit the crime. It is stated in the people's brief:
"Indeed, it would be absurd in this case for the State to contend that evidence of the commission of a larcenous offense on the 5th day of March (1932) would furnish any substantive proof of an intent to commit conjugal homicide on the 28th day of May. Decidedly, that was not the purpose of the testimony. It is one of the exceptions to the general rule that where testimony of the commission of another offense is merely incidental to another and relevant fact, it may be received without prejudice."
The theory of admissibility just above noted is not here applicable. The alleged "fake hold up" was in no way incidental to the murder charged against these defendants, nor was it incidental to any fact or circumstance which was relevant or material to the offense charged. Instead it tended strongly to establish appellant's guilt of obtaining a large sum of money by false pretenses, an entirely separate and independent felony. Act No. 328, Pub. Acts 1931, § 218. The testimony received was prejudicial and necessitates reversal.
Appellant also assigns error upon the admission of Sams' confession as evidence not only of Sams' guilt but also as tending to prove the guilt of Wysocki. The confession or statement of Sams taken on August 25th was made in the presence of Wysocki, the assistant prosecuting attorney and other officers. Both defendants were then under arrest. *Page 55 Sams' statement was taken in shorthand and later transcribed. It was a detailed recital of the arrangement made by defendants to commit the crime and of its consummation. When this confession was offered in evidence the following occurred:
"Mr. Ricca: If the court please, I want the objection to all of the testimony, as it is Sams' and does not apply to Wysocki.
"The Court: As I understand it, both were there so that this would apply to both.
"Mr. Ring: No, your honor. I think the jury should be excused while we thrash it out.
"The Court: I don't think so. There are certain legal features on which we can instruct the jury, or you may prefer a request to charge.
"Mr. Ring: There was an absolute denial on the part of Wysocki, and then the law says it does not apply."
As stated by counsel in the record just above quoted, there was at the time an "absolute denial on the part of Wysocki" in so far as Sams' statement implicated Wysocki. It is true, as urged in the people's brief, that Wysocki at the time made some "false, conflicting and inconsistent assertions;" but he in no way admitted as true Sams' incriminating accusation. He did not acquiesce by silence. Instead he promptly, emphatically and unequivocally denied the statement; and such denial was made by Wysocki at his first opportunity to do so. The record discloses the following:
"Q. (by assistant prosecutor) Alex (Wysocki), did you hear the statement that was given to me by Ira Sams?
"A. Yes, sir.
"Q. And is it true?
"A. No, sir." *Page 56
A little later, as Sams was continuing his statement, he was interrupted by Wysocki who asked: "How can you tell that story?"
Clearly the statement or admission by Sams, although made in Wysocki's presence, under the circumstances above noted was not binding upon or admissible as evidence against the latter. Notwithstanding the trial court was then informed that the statement about to be read to the jury was denied by Wysocki, the ruling of the court admitting it was:
"As I understand it, both were there so that this would apply to both."
This was erroneous and prejudicial to appellant. It was not corrected in the charge of the court to the jury. Because the case must be reversed on other grounds, we need not give consideration to the effect of the failure of appellant's counsel to request a charge covering this phase of the case, nor need we determine whether the giving of such a charge would have corrected the error committed. Likewise there is no occasion for considering the claim made in behalf of the people that appellant's counsel both by statements made to the court and by a request to charge "invited" the error above noted.
The people's case was presented on the theory that there was a conspiracy between the defendants to commit the murder charged. While the record is not altogether clear, it is a fair inference that it was because of such alleged conspiracy that the statement made by Sams was allowed to go to the jury as evidence not only of his guilt but also of the guilt of Wysocki. Clearly a statement of Sams made weeks after the alleged conspiracy was *Page 57 fully consummated was not admissible against the co-conspirator. The rule of evidence is thus stated:
"Even if a conspiracy is shown aliunde, the declarations of one conspirator are not admissible against the others, if made after the common design is accomplished or abandoned." 2 Jones' Commentaries on Evidence (2d Ed.), § 943.
See, also, Logan v. United States, 144 U.S. 263 (12 Sup. Ct. 617); Brown v. United States, 150 U.S. 93 (14 Sup. Ct. 37); 3 Encyclopedia of Evidence, p. 430, citing many cases.
The conviction of appellant is set aside and a new trial granted. Defendant remanded to custody of sheriff of Wayne county.
FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred with NORTH, J.