State v. O'Keefe , 23 Nev. 127 ( 1896 )

The facts sufficiently appear in the opinion. Appellant was tried separately upon an indictment charging him jointly with Charles Martin and Frank Conlan of the crime of robbery perpetrated upon the person of Jonathan Lees.

It was shown that Lees and McDonald during the daytime were in the front portion of a house occupied by McDonald, when a party of boys, among whom was the defendant, invaded the premises, separated the men by driving McDonald to the rear and detaining him there while the others robbed Lees of an inconsiderable sum of money. It was not definitely shown that defendant participated in the robbery other than he came with the robbers and left when they left, was present at the robbery and apparently acquiesced therein.

A verdict of "attempt to rob one Jonathan Lees" was returned. A motion for new trial was made and denied, and upon the judgment and order this appeal is taken.

The exceptions will be considered seriatim.

1. It is urged that the verdict is not responsive to the indictment. It must be admitted that the defendant could not be convicted of the offense charged unless he actually or constructively committed it. If his liability arise from the act of another, it must appear that the act done was in furtherance of a common purpose. The common purpose of robbery is shown by the acts of the defendant. It was not necessary to have shown that the defendant took any money from the person of Lees by his own hands, or that he actually participated in the assault. If he was present, under the circumstances, the evidence would have justified the jury in finding him guilty of the robbery.

Bishop states the law as follows: "If persons combining in intent perform a criminal act jointly, the guilt of each is the same as if he had done it alone; and it is the same if, the act being divided into parts, each proceeds with his part unaided." Again: "All who are present at a riot, prize fight or any other crime, if lending it countenance and encouragement, and especially if ready to help, should necessity require, are liable as principal actors." (Bishop's New Criminal Law, 630, 632.)

"There can be no doubt of the general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it, and that, if he combines and confederates with others to accomplish an illegal purpose, he is liable criminaliter for the acts of each and all who participate with him in the execution of the unlawful design. As they all act in concert for a common object, each is the agent of all the others, and the acts done are, therefore, the acts of each and all." (Com. v. Campbell, 7 Allen, 541.)

The doctrine, as applied to cases of homicide is stated in 1 Hale's Pleas of the Crown, p. 441, as follows: "If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or do any other trespass, and one of them in doing thereof kill a man, this shall be adjudged murder in them all that are present of that party abetting him, and consenting to the act, or ready to aid him, although they did but look on."

The court instructed the jury, in effect, that under the circumstances if the defendant stood by, and by his presence aided or abetted those who committed the robbery it was sufficient. The matter was properly submitted to the jury. It was not necessary to have shown any other physical act. The statute (section 4292) provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged, or an attempt to commit the offense. Upon the evidence, as we have seen, the jury could have found the defendant guilty of the robbery. As they have found him guilty of a lesser offense he cannot complain.

2. At the commencement of the trial counsel for appellant announced in open court that they would introduce the the co-defendants as witnesses. They were not sworn, and the district attorney, in summing up, among other things, said: "From the fact that the defense did not place upon the witness stand the parties jointly indicted with this defendant, who were present at the commission of this robbery, and whom they had announced in court as their witnesses, and have had an opportunity to produce, the inference, I claim, is that this defendant either aided, abetted, assisted or encouraged the commission of said robbery, and you are at liberty to infer his guilt from this circumstance, and the failure of the defense, by such witnesses, to explain the defendant's connection with the robbery."

Appellant moved to strike out the above statement, and, upon denial of the motion, excepted to the ruling.

It will be observed that the inference drawn by the district attorney was one for which he alone, and not the court, was responsible. The most that can be said against it is that it is a misstatement of the law. If so, the error could have been corrected by an instruction, and not, as in this case, by a motion to strike out. Such motion affords no adequate relief.

In Proctor v. DeCamp, 83 Ind. 559, a similar question arose. The court said: "Errors in logic, or in law, occurring in the address to the jury, cannot be made a cause for overturning the verdict. If the error is of logic, if illogical conclusions are drawn or illicit inferences made, the courts cannot correct these by directing counsel to reason logically. If, however, counsel state the law incorrectly in their address to the jury, the adverse party can secure a correction. The correction is not to be obtained by objecting to the statements of counsel during the argument, but by asking the court to give the law to the jury in its instructions."

Again, if error were committed, it was corrected by the instructions. In charging the jury the court, among other things, said: "In determining questions of fact presented in the case, you should be governed solely by the evidence introduced before you. * * * You have entered upon your duties as jurors in this case by taking a solemn oath that you would render a true verdict according to the evidence. That duty and obligation are performed only when a verdict is rendered which is in accordance with the evidence. While you have a right to use your knowledge and experience as men in arriving at a decision as to weight and credibility of witnesses, yet your finding and decision must rest alone upon the evidence admitted in this trial. You cannot act upon the opinions and statements of counsel as to the truth of any evidence given, or as to the guilt or innocence of the defendant."

3. Exception was taken to the admission of evidence illustrating the manner in which Martin committed his part of the robbery. At the time the exception was taken the complicity between the defendants had not been as fully established as it afterwards was, but the witness Lees then under examination, had testified to the assault made upon him by several persons in whose company the defendant was. This was a sufficient foundation for the admission of the evidence.

4. Exception was taken to evidence given by the witness Lees touching a colloquy between himself and McDonald. After the exception had been taken McDonald testified, fully corroborating Lees' statement, without objection, and no attempt was made to disprove the fact.

Under the circumstances the defendant was not prejudiced.

The judgment and order denying a new trial are affirmed.