I respectfully dissent from the result reached in the majority opinion in this case on the sole ground that after the conspiracy had been consummated and its common purpose effectuated, the court permitted C. E. Mahan, an attorney at law practicing in Fayette County, to testify that about seven o'clock on the morning of Saturday, November 16, 1946, W. A. Thornhill, Jr., came to his house with the evident purpose of placing a telephone call to Charleston, and that prior thereto witness received a telephone call purportedly from Thornhill, in which the latter informed witness that "There was some suspicious circumstances going on around the Court House at Beckley." This testimony was given in answer to the inquiry: "Were you informed by Mr. Thornhill that there had been any irregularity in the handling or the safekeeping of the ballots?" All of Mahan's testimony as to the telephone conversation is, in my opinion, inadmissible and requires reversal of this case.
It is the prevailing rule in this jurisdiction that "After the conspiracy has been consummated, and the common purpose carried fully into effect, subsequent acts and declarations of any of the co-conspirators, made in the absence of the others, are not admissible in evidence against the latter." 2 Lee, The Criminal Trial in the Virginias, 2d Ed., p. 562, Section 814, and cases cited; State v. Campbell, 115 W. Va. 198,174 S.E. 797; State v. Spurr, 100 W. Va. 121, 130 S.E. 81; State v.McCoy, 61 W. Va. 258, 57 S.E. 294. Of course, when the making of a statement by a conspirator after the conspiracy is accomplished is so closely connected with the major purpose of the parties as to form a part of the res gestae, it is admissible; but when the statement is not a part of the resgestae it is clearly inadmissible. State v. Hively, 103 W. Va. 237,136 S.E. 862; Willis v. Blue Ridge Bank, 153 Va. 392,149 S.E. 624; 2 Lee, The Criminal Trial in the Virginias, 2d Ed., p. 563, Section 815. *Page 352
I do not think that the telephone conversation was so closely connected with the consummation of the alleged crime as to make it a part of the res gestae.
It follows that I would reverse the judgment of conviction.