Romeo

The plaintiffs in error, hereinafter ealled the defendants, were convicted under an indictment which charged them with a conspiracy to conduct and maintain a common nuisance at certain designated premises, by keeping, selling, etc., intoxicating liquors, and a conspiracy to unlawfully possess and sell intoxicating liquors, setting forth ten overt acts, alleged; to have been committed in pursuance thereof.

Error is assigned to the admission of the testimony of Whitney, prohibition agent, as to a conversation he had with Rossi concerning certain activities of the defendants in the alleged conspiracy. Rossi was indicted as a eodefendant, but was not tried with the others. Whitney’s testimony was to the effect that Rossi told him of his employment by the two defendants Gatt as a bartender and for other services, in selling and handling whisky and helping to operate some stills, and it covered in detail matters which were pertinent to the issues in the case, and which tended to establish the charge of conspiracy against all the defendants. No exception was taken, on the day on which this testimony was given, to any thereof. But on the following day, when the witness resumed the…

(concurring). The major part of the testimony of Agent Whitney related to reports made to him from time to time by the defendant Rossi, giving information as to tho personnel of. the conspiracy and narrating what they had done in the past and what they proposed to do in the future, such as when a certain cache would be filled, and where the cache could be found. Rossi was not on trial, and it will be conceded, perhaps, that statements made by him were incompetent as against the other defendants, unless made in their presence, or unless made in furtherance of the object of the conspiracy. It is not contended that the statements wore made in tho presence of any of the other defendants, nor can it be successfully contended that they were made in furtherance of th'o object of the conspiracy. Indeed, tho necessary effect of tho reports was to bring the conspiracy to an end, rather than to further its objects. Nor does such a narration of facts come within oven tho broadest conception of the res gestas rule. For these reasons, that part of the testimony relating to reports made to the agent should have been excluded, if timely objection had been made. No such objection was interposed,…