State v. McCahill

¶1supplemental OPINION ON REHEARING.

¶2Tuesday, June 21, 1887.

¶3W. W. Phillips and MeDuffie ds Howard, for appellant.

¶4A. J. Baleer, Attorney-general for the State.

¶5An opinion was filed in this case at a prior term, affirming the judgment of the court below. No abstract, assignment of errors or argument in behalf of defendant having been presented, a rehearing was granted, with the assent 'of the attorney-general; and the cause has been again submitted upon an abstract and argument, both oral and printed, on behalf of defendant. We proceed to the further consideration of the case, so far as to dispose of all questions raised by counsel in their arguments.

¶6conflicting I. The facts in the case are clearly, fully and correctly stated in our former opinion, and no further statement thereof need be attempted. This opinion, it cannot be denied, shows that, although the case was before submitted 'without argument, it had careful, deliberate and thorough consideration by this court.

¶7Counsel for defendant begin the discussion of the case with this frank admission, which is a correct statement of a controlling rule of the law applicable to the case: “ We concede that, if the defendant was present at Keystone No. *1192 (the locality of the homicide) on the night of the 7th oí January, and acting in concert with the body of men who were there for the purpose of frightening or driving Munson and his co-laborers from the mine, his conviction is right, although he did not fire the shot which killed Munson.” But counsel maintain that the evidence fails to support the facts on which this admission is based. It surely cannot be said that there is no evidence tending to show defendant’s presence at the place of the homicide, and his action in concert with others for the purpose of driving away Munson and the other laborers. The evidence tends to show that defendant, from the beginning, co-operated actively in efforts to drive away these men; that he was associated in sympathy and interest with those engaged iu the unlawful purpose, and was among the leaders in the enterprise; that there was a prearrangement as to the purpose, and action in concert to accomplish it; and that defendant was present at the place of the homicide, acting with the other conspirators. It is true that there was evidence, on the part of defendant, in conflict with the testimony introduced by the state, tending to establish these facts.

¶8It cannot be said that, upon this conflicting evidence, the jury, in the honest, intelligent and unbiased exercise of their discretion, could not have found the facts in question which establish defendant’s guilt. "We cannot, therefore, under familiar rules prevailing in this court, interfere with the judgment on the ground of the insufficiency of the evidence to support the verdict.

¶96. ortmisal murder ¿y conspirators: previous acts. II. Evidence was introduced by the state, against defendant’s objection, tending to prove the acts of violence and threats of the strikers, with whom defendant was associated, at a time preceding the homicide-We think the evidence eomjoetent to show the purpose of the strikers to use violence in order to accomplish their unlawful purposes. As defendant acted in con*120cert with the other strikers to effect the purpose common to all, the evidence was competent to establish that purpose.

¶107._: error uciiceU pre;i' III. Certain evidence was introduced showing a conversation between two employes connected with the coal mines, at the time of the troubles, in which the opinion was expressed to the effect that there was danger of the violence resulting in bloodshed. We confess that the pertinency and relevancy of the evidence does not plainly appear. It may be possible that it would serve to show the nature and extent of the violence. But we are unable to discover any prejudice that could have resulted to defendant from the admission of the evidence, and therefore we cannot regard it as reversible error.

¶11ihb same. IV.. A witness for defendant, upon his cross-examination, was asked certain questions tending to show the feelings, as to the strikers, of one who accompanied him to tjie gcene 0£ tjie ]lomicide shortly after it occurred. As in the case of the evidence just noticed, we are unable to discover its pertinency. But it appears that no prejudice to defendant resulted therefrom. It is not, therefore, a ground for reversing the judgment.

¶12s- oBEonrAi, evidence: murder by conspirators : other offenses, V. The state was permitted to show an assault upon the new miners, made an hour and a half before the homicide, by the striking miners in whose company defendant , 1 •' was. This violence was at a mine a mile and a half distant from the place of the homicide. We think the evidence was rightly admitted. It tended to show the nature and extent of the conspiracy, and defendant’s connection with it.

¶13the same VI. Many other objections are urged to the rulings of the district court upon questions relating to the admission testimony. Some of these objections are based upon tbe ground that the evidence objected to tends to establish “ other offenses.” They tend to show unlawful acts done in the execution of the plans and purposes of the defendant, and those with whom he acted in con*121cert; thus tending to show the existence of a conspiracy, and that the homicide was done in the unlawful prosecution of its plans and purposes. We think other objections to the testimony demand no special attention.

¶14„. ——■: con-spiraey: in-straction. YII. It is insisted that certain instructions are erroneous for the reason that there was no evidence given to which they are applicable. They relate to the existence of the . . . . , • , . ,. conspiracy, winch was not proved by direct evidence, but was inferable from the facts established by the testimony. It cannot be said that there was no evidence supporting an agreement among the strikers to commit violence in order to accomplish their purposes.

¶1510. xNsi'Ruc-c¿argeVreat together. VIII. An instruction informing the jury of the ways in which a conspiracy may arise did not direct them that the which they conspired to do must be unlaw-or done by unlawful means. But another instruction clearly presents this thought. The instructions, read together, present the correct rule to the julT*

¶1611. CRIMINA.!. law: conspiracy: guilt of abettors. IX. An instruction complained of by defendant is in the following language: “ (10) But in the second case, where a conspiracy arises out of a concert of action simply, 1 . 1 . rJ and without any previous agreement or compact j r o r as t0 its extent or purpose, the responsibility of any one of the parties thereto would cease when he abandoned the common purpose and withdrew from any further concert of action with the others, and withdrew all his aid, countenance and encouragement from the enterprise; but his responsibility for the acts of all, done in furtherance of the common purpose, would continue until he did this.

¶17“ Accordingly, if the evidence in this case is such as to lead you to believe that a large body of these striking miners, including this defendant, assembled together on January 7th, without any specific agreement or understanding as to what they would do; that they united in attacking the men from the Standard mine, and drove them away; that defend-*122aut took part in sucb attack, but that, when the same was ended, he withdrew from the crowd, and withdrew all his aid, countenance and encouragement in any further action; that he neither went to Keystone No. 2, nor aided, encouraged nor advised the others in going there; and that previous to their going there the defendant had withdrawn entirely from any and all concert of action with the others, and had -withdrawn all his aid, countenance and encouragement from the enterprise, — he will not be responsible for any acts of the other parties after he liad so severed his connection with them; and, if you find this to be the state of the case, the defendant should be acquitted. But if he went to Keystone No. 2, and assisted in attacking the house where Munson and his comrades were; or if he did not in fact go there himself, but if he advised, aided or encouraged others to go there, for the purpose of driving or taking the new miners away, and in the prosecution of that purpose the house where Mun-son and the other new miners were was attacked and fired into by them, and Munson was killed by any of such shots,— the defendant will be liable, with all the others so engaged with him, for such killing.”

¶18This instruction correctly presents the law applicable to the responsibility of a conspirator after he becomes identified with the conspiracy. His guilt, if he did not personally aid in the commission of the unlawful act, consisted in the encouragement he gave thereto. If he advised and directed the unlawful acts, he cannot escape responsibility by quietly withdrawing from the scene. His guilty act was the encouragement and advice he gave those who committed the crime. The influence and effect of this encouragement continued until he withdrew it by acts or words showing that he disapproved or opposed the contemplated crime. He cannot, by the coward’s expedient of running away after he has incited his associates to crime, escape punishment.

¶19*12312. INSTKUC-«Hon of rule" of law.*122X. Counsel think the court erred in repeating, in three *123or four instructions, the thought that defendant is guilty if he aided, abetted or encouraged others to commit 3 ° ^be crime, even though he was not present. The rule announced cannot be questioned, and we can discover no possible prejudice resulting to defendant from its repetition. It does not appear to us that it was brought to the attention of the jury in an improper connection.

¶20The. foregoing discussion disposes of all questions argued by counsel.

¶21Upon the further careful reconsideration of the case, we remain well satisfied that the judgment of the district court OUght to be AFFIRMED.