DeCourcy, J.
1. In the absence of the alleged co-conspirator Harrison, whose whereabouts was unknown to the prosecution, the trial proceeded against the defendant alone. The motion to dismiss the indictment on that ground was rightly denied. People v. Richards, 67 Cal. 412. State v. Buchanan, 5 H. & J. 500. Rex v. Kinnersley, 1 Stra. 193. Regina v. Ahearne, 6 Cox C. C. 6. 1 Russ. Crimes, (7th ed.) 147, 148, notes.
2. The defendant’s testimony before the grand jury was properly admitted at the trial. The judge fully guarded the defendant’s legal rights, and instructed the jury not to consider this evidence unless they were satisfied that the statements were made by the defendant voluntarily and after he had been informed that he was not obliged to furnish any evidence tending to incriminate himself. This unrestricted constitutional guaranty against incriminating testimony by one accused of crime was established when a defendant was not allowed to be a witness in his own behalf, and need not be extended under present day conditions. Certainly the fact that statements freely made by the defendant under oath tend to show that he conspired to steal the property of another is no reason for excluding them in a proceeding instituted to investigate the truth as to an alleged crime and to safeguard the interests of the community. Commonwealth v. Mead, 12 Gray, 167. Higgins v. State, 157 Ind. 57. State v. Robinson, 32 Ore. 43.
3. No error is shown in the admission of statements made by the alleged co-conspirator Harrison in the absence of the defendant. Before this testimony was introduced the prosecution had offered the defendant’s testimony before the grand jury, which, presumably, satisfied the trial judge that a prima facie case of unlawful conspiracy had been made out. Further, in his charge the judge clearly and fully instructed the jury that in determining the preliminary question whether a conspiracy existed, they must con sider the acts and declarations of the defendant alone; and he carefully cautioned them not to consider the alleged declarations of Marrison as against the defendant unless and until the evidence of the defendant’s own conduct and statements satisfied them that he was engaged in a common purpose with the alleged co-conspirator. The jury were warranted in finding that a criminal conspiracy was thus established, and in then considering the declarations of Marrison, made in furtherance of the common purpose, to be in legal effect the statements of his absent partner. So far as this evidence was competent against the defendant, the order of introducing it was within the discretion of the presiding judge. Commonwealth v. Smith, 163 Mass. 411, 418. Commonwealth v. Rogers, 181 Mass. 184, 193. Commonwealth v. Stuart, 207 Mass. 563.
4. There is some doubt as to whether the defendant intended to waive his exception tq, the judge’s refusal to give the rulings requested; but we have preferred to consider them. The first could not be given, as there was ample evidence that the defendant and Marrison conspired together to defraud Wesley A. Gove of more than $9,000 by means of a substantially worthless stock certificate. The sixth request suggests what at most would be an immaterial variance. There was no allegation of value in the indictment and none was necessary in the specifications. As matter of fact the Northern Pacific Railroad Company had no assets and its stock was not listed: whereas the Northern Pacific Railway Company’s stock, which this was falsely represented to be, was wholly different in kind and quality and had a market value of about $118 a share. R. L. c. 218, § 35. State v. Knowlton, 11 Wash. 512. The remaining requests deal with questions of fact and their determination was for the jury.
Exceptions overruled.