Powers v. Commonwealth

Opinion of the court bt

JUDGE DuRELLE

Reversing,

followed BY THE DISSENTING OPINION OF JUDGE WHITE, IN WHICH CHIEF JUSTICE PAYNTER, and JUDGE HOBSON concur.

This appeal is from a judgment of conviction in'the Scott Circuit Court, to which the case was transferred by change of venue from Franklin county, upon an indictment charging appellant as accessory before the fact to the murder of William Goebel. The indictment charges the murder to have been the result of conspiracy between appellant and others, and is as follows: “The grand jury of the county of Franklin, in the name and by the authority of the Commonwealth of Kentucky, accuse Caleb Rowers of the' crime of being accessory before the fact to the wiljful murder of William Ooebel, committed as follows, viz.: The said Caleb Powers in the said county ■of Franklin, on the 30th of January^ A. D. 1900, and before the finding of this indictment, unlawfully, willfully, feloniously, and of his malice aforethought, and with intent to bring .about the death and procure the murder of William Goebel, did conspire- with W. H. Oulton, F. W. Golden, Green Golden, John L. Powers, John Davis, Charles Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and others to this grand jury unknown, and did counsel, advise, encourage, aid, and procure Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Oombs, and other persons to this grand jury unknown, unlawfully, willfully, feloniously, and of their malice aforethought, -to kill and murder William Goebel, which one of the last five above-named persons, or another person acting with them, but who is to this grand jury unknown, so as aforesaid then and there, thereunto by the said Caleb Powers before the fact counseled, advised, encouraged, aided, and procured, did, by shooting and wounding the said Goebel with a gun -or pistol loaded with powder and other explosives and leaden -and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the third (fid) day of February, 1900, but which of said last above-mentioned persons, so as aforesaid, actually fired the shot that killed the said Goebel is to this grand jury unknown; 'against the peace and dignity of the Commonwealth of Kentucky.”

In the discussion of the questions involved, we shall state such facts only as are necessary to a correct understanding of the questions considered and decided, and those facts will be stated in connection -with the questions to which they relate.

On the trial a pardon was produced, purporting to have been issued by W. S. Taylor, as Governor of Kentucky, dated Maxell 10, 1900. The production of this paper was accompanied by filing what is termed in the record a “plea of pardon.” As we understand the law, no plea was necessary. The «imple production of a valid pardon of the offense whereof appellant was charged would put an end to the proceedings, and render void any proceeding thereafter taken in the trial.

In order to decide' the validity of the paper produced as a pardon, we must consider the situation at the time it was issued. This court takes judicial notice of the official signature of any officer of this State (Kentucky Statu! es, section 1625), and is presumed to know judicially who is the executive of the State at any time the fact is called in question (Dewees v. Colorado Co., 32 Tex, 570). See, also, 12 Am. & Eng. Enc. Law, p. 152, and notes. It is conceded by counsel upon both sides that the court can take judicial cognizance of the facts necessary to the decision of this question.

On January 30, 1900, William Goebel, a member of the Kentucky Senate, was shot by an assassin in the State-, house yard, in front of the capitol building, at Frankfort, and died some days later. This occurred during a period of political excitement and bitterness perhaps unexampled in the history of the Commonwealth. William Goebel, William S. Taylor, and John Young Brown had been candidates for the office of Governor of Kentucky'' a,t the preceding November election. The State board of election commissioners, elected under the act of March 11, 1898, examined and canvassed the returns of election, and issued a certificate of election to W. S. Taylor. This gave a prima facie title to the office to Taylor, who accordingly was duly inaugurated as Governor, took the oath of office, and took possession of the State building, and the archives and records appertaining to the office. This did not give him an absolute, indefeasible title to the office of Governor, but his title was subject to be defeated by the determination of a contest for the office. State v. Superior Court of Snohomish Co., 17 Wash., 12, (48 Pac. 741), (61 Am. St. Rep., 893). Until the certificate was set aside in some appropriate proceeding, he was entitled to retain possession and perform the duties of the office without interference. If the time should pass within which such proceeding might be instituted, that title became absolute and indefeasible. A contest was instituted by Goebel before the Legislature, and was pending at the time of the murder, as were also contests before the State board of contest for the minor State offices, certificates of election to which had been issued to the candidates upon the same ticket with Taylor. After the shooting, the militia, was called out by Taylor, and the Legislature prevented from meeting in the State capítol, and at certain' other places at which they attempted to hold meetings. The records of the Legislature' show, however, that a. meeting was held, at which it was determined by the Legislature that William Goebel, and not William S. Taylor, had been elected Governor of Kentucky, and that J. C. W. Beckham, •and not John Marshall, had been elected Lieutenant Governor. After Goebel's death. Taylor retained possession :of the executive building, archives, and records, and continued to act as Governor. Beckham opened an office in the Capital Hotel, a few blocks away from the capítol, which was called the “Governor’s Office/' and he also acted as Governor. There were thus two persons present at the seat of government, each claiming to be Governor de jure, and each assuming to perform the duties of the office. Only one of them could, by any possibility, be Governor de jure, and only one of them could be Governor de facto. State v. Blossom, 19 Nev., 312, (10 Pac., 430). The legal doctrine as to de f-acto officers rests upon the principle of protection, to the interests of the public and third parties, and not upon the rights of rival claimants. The law validates the acts of de facto officers as to the public and third persons upon the ground that, though not officers de jure, they are in fact officers whose acts public policy requires should be considered valid. Oliver v. City of Jersey City (N. J. Err. & App.) 44 Atl., 709, (48 L. R. A., 412). So, when .both are acting officially, that one who has the title de jure is both dc jure and de facto officer. Especially must this be so when the act whose validity is questioned is not an act affecting the rights of third parties, but is an act of the Commonwealth’s grace asserted against the Commonwealth. So the question is narrowed to an inquiry as to who was de jure Governor on March JO, 1900. The Legislature record shows that the General Assembly determined the contest. By the Goebel election law of March 11, 1898 (Kentucky Statutes, section 1596a, subsection 11), that decision was a judgment determining the title to the office. It was a self-executing judgment: “When a new election is ordered or the incumbent adjudged not to be entitled, his powers shall immediately cease, and if the office id not adjudged to another it shall be deemed to be vacant.” If this judgment of the Legislature was valid and final,- it settles the question, in an opinion of this court, from which the writer of this opinion dissented emphatically, and in the views of which dissent Judge O’Rear concurs, in the case of Taylor v. Beckham, 108 Ky., 278; 21 R.,1735 (56 S. W., 177) (49 L. R. A., 258), it was said that the judgment of the Legislature was final and conclusive. That decision settled the question finally, and the pardon must be adjudged invalid. The authorities upon this question are collated more fully in the opinion of Judge White, who concurs upon this question.

The next question in logical order is as to the sufficiency of the indictment. It has been set out in full. It is objected that the acts constituting the offense are not stated in “ordinary and concise language,” so as to enable one of “common understanding ro know what is intended.” We think the objection is not well taken. The indictment notifies t’he defendant that he is charged with conspiring to procure the murder of Ctoebel, that he procured the murder, and that the murder was fjone by some one who was by the defendant counseled and procured to do the act. In attempting to parse this indictment, there is at first.blush some difficulty. The use of the word “which” in the clause, “which one of the'last five, above-named persons,” etc., is somewhat ambiguous; but, on careful'examination, it seems to be used as a relative pronoun, whose antecedent is found in the clause, “to kill and murder William Goebel.” There is, however, no trouble as to the meaning, nor do we think a person of ordinary intelligence could be misled as to the nature of the charge. As said by the Massachusetts court in Com. v. Call, 21 Pick., 515: “The grammatical and critical objections, however ingenious and acute they may be, can not prevail. The age has gone by when bad Latin, or even bad English, so it be sufficiently intelligible,, can 'avail against an indictment, declaration, or plea. The passage objected to may be somewhat obscure, but, by a reference to the context, is capable of pretty certain interpretation.” In our opinion, the indictment is sufficient.

In the grounds relied on in the motion for a new trial, it is stated that the court overruled the motion of appellant, after the regular panel of the jury was exhausted, to draw7 the remaining names necessary to complete the jury from the jury wheel, it Is to be regretted that, in a case concerning w'hicli so much feeling existed, the simple and easy mode was not adopted which would have put beyond cavil the question of the accused having a trial by jury impartially selected. This will doubtless be done upon the succeeding trial.

We need not consider the debate between court and counsel, which is complained of in the argument, as it is not necessary to the decision of the case, and in the nature of things cun not, upon a subsequent trial, occur as it did in the trial now under review7.

Complaint is made that the witness Watts was permití ed to state a conversation with an unknown person, who made threats of violence concerning the Legislature. It was aftnrwmrds shown by the witness, how'ever, that he subsequently saw the unknown person, in the uniform of a sergeant, among the guards in charge of the capítol square. On the trial of offenses committed in furtherance of conspiracies, there must be considerable latitude left to the discretion of the trial court in the admission of testimony of circumstances tending to show that acts apparently isolated have sprung from a common object. As said by Judge King in Com. v. McClean, 2 Pars. Eq. Cas., 368: ‘ “The adequacy of the evidence, in prosecutions for a criminal conspiracy, to prove the existence of such a conspiracy, like other questions of the weight of evidence, is a question for the jury.” This testimony seems to have been admissible to go to the jury for what it was worth, in support of the theory of the OommonwTealth as to the nature of the conspiracy charged. The rule as to the admission of evidence in such cases is nowhere better stated than in Carson’s edition of Wright on Criminal Conspiracy (page 238). Rays Mr. Carson: “The concise, yet comprehensive, statement of Mr. Archbold may be accepted as a correct epitome: ‘Wherever the writings or words of any of the parties charged with, or implicated in, a conspiracy can be considered in the nature of an act dione in furtherance of the common design, they'are admissible in evidence, not only as against the party himself, but as proof of au act from which, inter alia, the jury may infer the conspiracy itself.’ Wherever the writings or words of such a party amount to an admission merely of his own guilt,, and can not be deemed an act done in furtherance of the common design, in that case they can be received in evidence merely as against the party, and not as evidence of tlie conspiracy, and in strictness: ought not to be offered in evidence until after the conspiracy had been proved aliunde-, >bui wherever the writings or words of such a party, not being in the nature of an act done in furtherance of the 'common design, merely tend to implicate others, and not to accuse himself, they ought not to be received in evidence for any purpose.” Tested by this rule, the language testified to by the witness McDonald, as to a conversation between two unknown men, in no wise identified as members of any conspiracy, or connected in any manner with those alleged as the co-conspirators with appellant, is-clearly incompetent.

The testimony of the witness Rinclair as to telegrams was-competent. As suggested by counsel for the Commonwealth, if true it would tend to show tile telegrams were written and sent before the- killing.

The trial court refused to allow the witness J. C. Owens to testify as to a conversation with the accomplice — witness Wharton Golden. The question sought to bring out the fact that Golden liad said that some .pne — possibly meaning one of the counsel for the prosecution — “could take that 'hundred thousand dollars and convict Jesus Christ and the twelve apostles.” Evidently this conver. sation was asked for on the theory that it tended to show the witness was not impartial, and that he had an interest in the result of the case. If it did so, it was not collateral or irrelevant to the issue, and Golden having been asked in regard to it, and his answer being adverse, the defense would have the right to contradict him by other testimony for the purpose of discrediting him. Steph. Dig. Ev. art. 180; 1 Greenl. Ev., 446; Schuster v. State, 80 Wis., 107, (49 N. W., 30); 3 Best, Ev., 221. But we are unable to see that the statement sought to be proved against Golden/indicates any interest. At the most, it could indicate only that, in his opinion, witnesses could be' obtained by bribery. No inference that he himself had been' bribed can be drawn from the language, without violent exercise of the imagination. In our opinion, it was collateral to the issue and was properly excluded.

Some of the witnesses for the defense, upon cross-examination with a view to impeachment by contradiction, were not permitted to explain the statements they made. We are of opinion that this view of the rule is too narrow. In 3 Best, EV., section 229, what we regard as the correct rule is thus stated as to the requirement that the witness’ attention shall be called to the supposed contradiction: “The rule which prescribes this condition rests on the principle of justice to the witness. The tendency of the evidence was to impeach his veracity, and common justice demands that before his credit is attacked he should-have an opportunity to declare whether he made such statements to the person indicated, and to explain what he said, and what he intended and meant in saying it.”

The court refused to instruct the jury that the statements of the witnesses Reed and Hazlewood as to a conversation with the witness Sparks should be considered as affecting only the- interest and credibility of Sparks. These statements to which Reed and Hazlewood testified were to the- -effect that the killing of G-oebgl had been determined upon, and pardons prepared for the perpetrators. Assuming that there was evidence to connect Sparks with the conspiracy charged, these- declarations, if admissible, were evidence in chief. But we do not think they were competent at all as against appellant. They were not part of the res gestae, or such as tended to jmomote the-common object. The rule is thus stated in Mr. Carson’s edition of Wright on Criminal Conspiracies: “But if the-•acts and declarations of a conspirator with the accused are made in his absence, they are not admissible against him to prove either the body of the crime or the existence of the alleged conspiracy, unless they either so accompany the execution of tin- common criminal intent as to become part of the res gestae, or in themselves tend to promote the common criminal object. The acts and declarations of a conspirator, to be admissible in evidence to charge his fellows, must have been concomitant with the principal act, and so connected with it as to constitute a part of the res gestae.” The cases of Clawson v. State, 14 Ohio St., 234 and State v. Larkin, 49 N. H., 39, fully support Mir. Oarson’s text, as does also the third instruction given by the court on its own motion in Spies v. People, 122 Ill., 1, (12 N. E., 865), (17 N. E., 898), (3 Am. St. Rep., 320): “The acts of each defendant should be considered with the same •care and scrutiny as if lie alone were on trial. If a conspiracy having violence and murder as its object is fully ■proved, then the acts and declarations of each conspirator in furtherance of'the conspiracy are the acts and declarations of each one of the conspirators; but the declarations of any conspirator before or after May 4th, which are merely narrative as to what has been or would be done, and not made to aid in carrying into effect the object of the conspiracy, are only evidence against the one who makes them."' We can not conceive how these statements, which were merely narrative of what had been or would be done, could be held to be made in aid of the object of the conspiracy charged. What is here said as to the testimony of Reed and Haxlewood expresses the views •only of Judges Burnam, O’Rear, and the wwiter of this opinion; the majority of the court being of opinion that the evidence is competent.

On January 25, 1900, as shown by testimony for the Commonwealth, there was a meeting in front of the capítol, at which speeches were made and resolutions adopted. Testimony was introduced by the Commonwealth of actions and statements, of certain persons who were apparently members of this assemblage, indicating violent and improper intentions. This evidence, we think, was proper, under the circumstances. But the defense was not permitted to show what the resolutions were which were adopted. The declarations of the members of this meeting wfere admitted, and were admissible, on the ground that they were aets part of the res gestae, and were themselves evidence to go to the jury to show the existence ■of the conspiracy charged. If the statements of person's in The crowd were admissible, the defense had a. right to a.ll the statement of the crowd that could be shown, because they occurred at .the same time and -place, and in the same connection. If the Commonwealth proved part of what was done there, the defense might prove all that was doné; if the Commonwealth showed violent language- to have been u-sed, the defense' had the right to show that peaceable language was also used; and, if the acts or expressions of individual members of the meeting are shown for the purpose of showing an evil intent in all, -surely the official utterance of the body might be shown for what it was worth, to rebut the inference that the- views of the individuals were1 the views of the entire body. In 1 Roberson, Ky. Cr. Law, p. 149, section 107, the rule is stated: “The acts and declarations of the defendant and his associates may be received in evidence as well in his.favor as against him, when they are a part of the res gesiae, or a conversation offered by the prosecution, but not statements at other times,” — referring to Cornelius v. Com. 15 B. Mon. 539. The introduction of the Commonwealth’s testimony made the testimony for the defense admissible.

By the exceptions to the admission and rejection of testimony many other questions of evidence are presented which are not -referred to in the briefs, but we think the principles which should govern their decisions have been, sufficiently stated in this opinion, and in the oxnnion in Howard v. Com. (this day decided), 110 Ky., 356; 22 R., 1845 (61 S. W., 756).

We shall next consider the instruction of the court.. There seems to be no objection to the first instruction. The second is objected to for the reason that there is no-repetition of the phrase, “if the jury believe from the evidence beyond a reasonable doubt.” This phrase, however,, at the beginning of the instruction, clearly applies to every one of the ingredients detailed therein as constituting: guilt of the offense charged. It not only applies grammatically, but, we think, could not be otherwise understood by a person of average intelligence.

It is objected to the third instruction that it permits the jury to find appellant guilty “whether he was present ■at the time of the shooting or wounding or not,” and that the' jury were thereby permitted to find a verdict of guilty upon the theory that he was present, notwithstanding he is charged only as an accessory before the fact, and, if present, would not be an accessory, but a principal, in ■either the first or second degree. This objection is not tenable, for there is no testimony tending in the slightest degree to show that appellant was present at the time of the shooting. On the contrary, all the testimony shows he was elsewhere. It could, therefore, under no supposition, have prejudiced him. This part of the instruction would have been more directly applicable to the ease presented if, instead of the phrase quoted, the court had used language similar to that used in the fifth instruction, “although he was not present at the 'time of the shooting or wounding.”

The fourth instruction is also objected to. It is as follows: “If the jury believe from the evidence beyond a reasonable doubt that the defendant, Caleb Powers, conspired with W. H. Guitón. F. W. Golden, Green Golden, John L. Powers, John Davis, James Howard, Berry Howard, Charles Finley, W. S. Taylor, Harlan Whitaker, Richard Combs, Henry Youtsey, or either or any of them, or other person or persons unknown to the jury acting with them, to bring a number of armed men to Frankfort, for the purpose of doing an unlawful or criminal act, in the pursuance of such conspiracy defendant did advise, counsel, or encourage the killing of members of the Legislature, said William Goebel being a member thereof, and said Goebel was killed in pursuance of such advice, counsel, or encouragement, then the defendant is guilty of murder,, whether the'person who perpetrated the act which resulted in the death of William Goebel be identified or not; and, if the killing of said William Goebel was committed in pursuance of such advice, counsel, or encouragement, and was induced and brought about thereby, it does not matter what change, if any, was made by the conspirators-, if any was made, as to their original designs or intentions, or the manner of accomplishing the unlawful purpose of the conspiracy.” This instruction seems open to the objection that, after the wdrds, “and said Goebel was killed in pursuance of such advice, counsel, or encouragement,” there should be added the. words, “and said killing was induced thereby,” or an equivalent expression. It is also objected that it assumes the fact to exist that Goebel was a member of the Legislature, when that was a matter to be proven.

A further objection to this instruction is' that the recital of a -conspiracy to bring armed men to Frankfort, for the purpose of doing an unlawful or criminal act, is unnecessary to the instruction, and it might tend to confuse the jury. If, without any conspiracy, appellant advised and counseled the killing of members of the Legislature,, and in pursuance -of such advice and counsel, and induced thereby, the killing of Goebel was done, he was guilty of murder, without any reference to the question whether he engaged in a conspiracy to do, or to procure the doing of,, some other unlawful act. But it is -not necessary to consider whether these -objections amount to a reversible-error.

The objections to the fifth and sixth instructions do not seem to us to be valid.

The seventh instruction is as follows: “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant Caleb Powers conspired with W. H. Guitón, F. W. Golden, Green Golden, John L. Powers, John Davis, Charles Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, or any one or moire of them, or with some other person or persons unknown to the jury, acting with them, or either of them, to do some unlawful act, and that in pursuance of such conspiracy, or in furtherance thereof, the said Henry Youtsey, James Howard, Berry Howard, Harlan "Whitaker, Richard Combs, or some one of them, or some other person unknown to the jury acting with them, or with those who conspired with the defendant, if any such conspiracy there w7as, to do an unlawful act, did shoot and kill William Goebel, the defendant is guilty, although the jury may believe from the evidence that the original purpose was not to procure or bring about the death of William Goebel, but was for some other unlawful and criminal purpose.” After the instruction .had been given, and after four of the five speeches upon each side had been made to the jury, this instruction was amended as follows: “The words ‘some unlawful act,’ as used in this instruction, mean some aet to alarm, to excite terror, or the infliction of bodily harm.” We do not regard the amendment of the instruction as improper on account of the time at which it was done. If the court erred in the instruction given, it was, we think, its right and its duty to so amend it as correctly to state the law. Abundant time remained for the discussion to the jury of the amendment,, and the trial court would doubtless have further extended it upon that account if requested.

In considering the other objections to this instruction, it is necessary to examine the doctrine of the responsibility of one conspirator for the acts of his oo-eons¡pirators in furtherance óf the common design, although not specifically intended by him. This doctrine, in its application to the varying facts of individual cases, is founded upon several distinct and well-recognized legal principles, not, however, always distinguished by the earlier writers; and, first, there is the common-law doctrine which transfers the evil intent of a person attempting one kind of crime to the unexepected results produced by his acts. If a man in the commission of a wrongful act, were it only a civil trespass, committed another wrong unmeant by him, he was punishable. So. if he attempted to kill one individual, and by accident killed another, whether by striking, shooting, giving poison, or in any other way, as his intent was murder, and slaying was accomplished, he was guilty of murder. So. also, if, in the attempt to commit one variety of crime, an entirely different crime was accidentally accomplished, the malice of the intended crime was imputed to the act done, in all cases where general evil intent was a constituent of the committed act. In the application of this doctrine, a distinction was made resting upon the grade of the intended offense. If the crime intended was a felony, as at common law practically all felonies were punishable with death, either with or without benefit of clergy, the felonious intent of the intended crime was imputed to the committed act, and, if it were homicide, made it murder; for it was considered immaterial whether a man was hanged for one felony or another. If he succeeded in his original felonious design, his intent was sufficient]}' evil to justify banging. If he, by misadventure, accomplished another offense requiring general malevolence, the evil intent of the intended act, being sufficient to justify the death penalty, was imputed to the act committed. His intent, if successful, was worthy of death; the deed he did was worthy of death, if it had that intent; and so it was considered by the judges as making no difference whether the committed act was the one intended. On the other hand, if the intended act was not felonious, a resultant homicide was not murder, but manslaughter. So we find that unlawfully, but not feloniously, to shoot at the poultry of another, and thereby accidentally to kill a human being, was manslaughter; but as larceny was, at common lavr, a felony, if the shooting were done with intent to steal the poultry, the homicide was murder. But as with advancing civilization the savage cruelty of the ancient English common law, under which some hundreds of offenses were punished with death, became softened by statutory amendment, this doctrine, even in Great Britain, became modified. The reason foi-' its existence, that it made no difference to the prisoner, or the judges for what reason the death penalty,-, or its practical equivalent, was inflicted, having failed, the doctrine itself ceased to be .applied with its ancient rigor; and in Reg. v. Faulkner, 19 Eng. Rep., 578, we find a case in which a sailor, who, in attempting to steal rum, accidentally set fire to the spirits, and thereby burned the ship, was held not guilty of arson. An interest; ing discussion of this doctrine is found in 1 Bish. New Cr. Law, c. 21.

With the adoption of the English common law in the various jurisdictions in this country, and its modification by statute, there came the question whether this doctrine applied to statutory felonies which were not felonious > at common law. In some of the jurisdictions it was ¡held without qualification that it did. It may be remarked that, in many of the earlier eases, the attempted offense was abortion; and it may be that the moral turpitude of this offense, not at common law a felony, had effect in determining- the question. It was held in a Maine case (Smith v. State, 33 Me., 48, 54 Am. Dec., 607), and the same doctrine was announced in a number of eases, that the grade of the committed offense depended upon the graduation of the attempted offense by the statute, and not upon the oonnnon-law classification. This is also justified upon the ground that, such an attempt being done without lawful purpose and dangerous to life, malice is imputed. Eut in that case it was held that procuring a miscarriage resulting in death, was manslaughter only, as such procuring was a misdemeanor. This doctrine was emphatically stated by Chancellor Walworth, delivering the opinion of the New York court in People v. Enoch, 13 Wend., 159, (27 Am. Dec., 197), holding that as often as the Legislature creates new felonies, or raises offenses which were only misdemeanors at the common law7 to the grade of felony, a new7 class of murders is created by the application of this principle to the case of killing of a human being by a person who is engaged in the perpetration of a newly-created felony. So, on the other hand, when the Legislature abolishes an offense which at the common law was a felony, or reduces it to the grade of a misdemeanor only, the case of an unlawful killing, by a person engaged in the act which w7as before a felony, will no longer be considered to be murder, but manslaughter merely.”

This doctrine, manifestly, should have no application in a jurisdiction where, as in Kentucky, every offense punishable by confinement in the penitentiary, no matter for how short a term, has, by one sweeping enactment, been raised to the grade of felony (Kentucky Statutes, section 1127), except it be qualified by the limitation foreshadowed by Air. Bishop (1 Bish. New (Jr. Law, section 336), “by requiring the act towards the proposed crime to have a natural tendency to produce the unintended result.” This limi(ation has been indicated in a number .of cases, of attempted crime which resulted in the commission of a wmong not intended. It hais, as we all see, been applied with striking unanimity in the modern cases of conspiracy. AAre take it there can be no question of its application in this State. To illustrate: Under our statute, the removal of a corner stone is punishable; by a short term in the penitentiary, and is therefore a felony. If, in attempting this of-fens'1, death were to result to one conspirator by his fellows accidentally dropping the. stone upon him, no Christian court would hesitate to apply this limitation.

This doctrine of imputed malice was a part of the common law as 1o conspiracy (1 Bish. New Cr. Law, section (633), though, as said by Air. Bishop, “the books furnish little judicial reasoning on the question.” So) also, was tin; doctrine that “a sane man must be •presumed 1 o contemplate and inton'd the necessary, natural, and probable consequences of Ms own acts. 3 Greenl. Ev., sections. 13, 14; Rex v. Farrington, Russ. & R., 207; Com. v. Webster, 5 Cush., 305, 52 Am. Dec., 711,” 3 Best, Ev., section 286. Underlying the whole law of conspiracy is the doctrine of agency. A® said by Air. Bishop (1 Bish. New Or. Law, section 631): “Since in law an act through an agent is the same as in person, one who procures another to do a criminal thing incurs the same guilt as though he did it himself. Nor is his guilt the less if the agent proceeds equally from his own desires or on his own account.” It is on these principles that it is said in Whart. Cr. Law, section 220: “All those who assemble themselves together, with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime.” This is a correct application of the principle, for the reason that “there is a general presumption in criminal matters that a person intends whatever is the natural and probable 'consequences of his own action.” 1 Phil. Ev., 632. Besides the various groups of facts which, in the older books, are held to constitute murder under one or the other of these principles, we find classed with them a number of eases where the responsibility is really that of principal in the second degree; under the law as now administered; that is, the responsibility of one “who is present, lending his countenance, encouragement, or other mental aid, while another does the act,” and who, by the ancient law, was accessory at the fact. 1 Bish. New Cr. Law, section 648. They are thus grouped because the responsibility wa,s the same, whether the homicide was committed in the attempt to commit a felony, and was therefore murder under the doctrine of imputed Malice; whether it was done by the defendant by himself or his agent, or “happened in the execution of an unlawful design, which, if not a felony, is of so desperate a character that it must ordinarily be attended with great hazard to life; and a fortiori, if death be one of the events within the' obvious expectation of the conspirators” (Fost. Crown Law, 261; U. S. v. Ross, 1 Gall., 624, 27 Fed. Cas. 899, Fed. Cas. No. 16,196), in which case malice was imputed from ¡the dangerous nature of the act engaged to be done; or whether it occurred with the defendant standing by and ready to help, if necessary, in which ease he was accessory at the fjict by the ancient law, and aider and abettor and principal in the second degree under the present practice. Illustrating this grouping of crimes, we find it stated in 1 Hale, P. C., 1-11 (quoting from T)r. Dalton, p. 211): “Note, also, that if divers persons oome in one company to do any unlawful thing, as to kill, roto, or beat a man, or to commit a riot, or to 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.” And in 1 East, P. C., 2o7, it is said: “Where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it with violence, or in such a manner as naturally tends to raise tumults and affrays, as by committing a violent disseisin with great numbers, or.going to beat a man, or rob a park, or standing in opposition to the sheriff’s posse, they must, at thedr peril, abide the event of their actions.” As we have indicated with regard to unintended results of intended wrongful acts done by the offender in person, the common-law doctrine of imputed felonious intent has been modified. With much greater uniformity has this doctrine -been -disregarded in oases of conspiracy, so that for many years the test of guilt in such cases has in no wise depended upon the -doctrine of imputed felonious malice, -but either upon the doctrine of aider and abettor, or upon the doctrine that the act for which the accused is to be held responsible must be, either expressly or by implication, within the scope of his agency, and upon the legal presumption that he intends the necessary or prob able consequences of his acts, whether done by himself or through the agency of another. In every case his will must contribute to the thing actually done. This change has taken place in strict accord with the principles of growth which are a part of the common-law system. The ancient doctrine in one of its applications depended upon the existence in the accused “of a depraved, wicked, and malignant spirit,” which would justify the death penalty if he succeeded in his undertaking. That spirit was supposed to exist whenever the act attempted was a felony. But such a doctrine, manifestly, can have no application to a class of offenses the commission of which does not, and can not indicate such a spirit. And when, in many of the States of this country, we made the question of felony depend upon the place in which a brief imprisonment might. be passed, and acts were made statutory felonies, which by the ancient law were not offenses at all, and were then not even considered to be morally wrong, the doctrine that felonious malice could be imputed, so as to transform incidental homicide into murder, passed away forever. The reason of the rule passing, the rule passed also; and, in place of looking to the graduation of the attempted wrong under the (Statutory classification, we look to that on which the ancient classification was founded, — “the depraved, wicked, and malignant spirit” which the offender actually ■had in his 'heart, or which we impute to him because we suppose him to have intended the necessary or probable consequences of that which he actually did or tried to do. This is upon the wise, just, and humane principle which has enabled the common law to adapt itself to the changing necessities of human society, and has made it, as Burke said, “'an edifice having the principles of growth within itself.” The law, as declared to-day, is in exact accord with what has been said. It is so stated in the text-books and the cases.

In 1 Roberson, Ky. Cr. Law, pp. 133, 134, section 101, it is said: “No responsibility attaches, however, for acts not contemplated, and which are not within the purpose of the conspiracy, or the natural consequence of executing that purpose; and the question is for the jury whether the act done was in furtherance of the common purpose, or independent of it, and without any previous concert.”

In the article on “Conspiracy,” by Mr. Archibald R. Watson (6 Am. & Eng. Enc. Law, 270), the doctrine as to the responsibility of a conspirator for acts of co-conspirator is thus stated: “'When individuals associate themselves in an unlawful enterprise,' any act done in pursuance of the conspiracy by one of the conspirators is, in legal contemplation, the act of all. And this mutual co-equal responsibility of 'each conspirator for the acts of his asso dates, done pursuant to, and in furtherance of, the common design, extends, as well, to .such results as are the natural or probable 'consequences of .such acts, even though such 'consequences were not specifically intended as part of the original plan. This doctrine, however, holding each couspinatoir liable for the acts of his associates, as well as for the consequences of such acts, is subject to the restriction indicated in the statement of the rule, namely, that it is only for such acts as are naturally or necessarily done pursuant to and in furtherance of the conspiracy, and for the natural or necessary consequences of such acts, that a co-conspirator is responsible. And it is for the jury to determine whether an act done by a member of a conspiracy is done in furtherance of the cómlmon design, as well as what are the natural and necessary consequences of such acts.”

In Martin v. State, 89 Ala., 115, 8 South., 23, 18 Am. St. Rep., 91, a case of murder, it was said: “When two or moire persons enter upon an unlawful enterprise, with a common purpose to aid, assist, advise, and encourage eadh «other in whatever may grow out of the enterprise upon which they enter, each is responsible, civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all, or less than all, of the conspirators. . . . ‘It should be observed, however, that, while the parties are responsible for consequent acts growling out of the general design, they are not for independent acts growing out of the particular malice of individuals.’ 1 Wharf. Cr. Law, section 397. And this is the general doctrine on the subject. Smith v. State, 52 Ala., 407; Jordan v. State, 79 Ala., 9; Williams v. State, 81 Ala., 1; 1 South., 179, 60 Am. Rep., 133; Amos v. State, 83 Ala., 1, 3 South., 749, 3 Am. St. Rep., 682; 1 Bish. New Cr. Law, section 489.”

In Gibson v. State, 89 Ala., 121 (8 South., 98), (18 Am. St. Rep., 100), an indictment for murder, the law was thus stated by Judge Somerville: “There was evidence fending to show a conspiracy on the part of the defendants to attack the deceased. — circumstances from which the jury were authorized to infer a common design, at least, to assault and beat him. Each would therefore be criminally responsible for the acts of the other in prosecution of the design for which they combined, i. e„ for everything done by the confederates which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended m a part of the original design or common plan. The law on this subject is fully discussed in Williams v. State, 81 Ala., 1, (1 South., 179), (60 Am. Rep., 133), and in Martin v. State, 89 Ala., 115, (8 South., 23.”)

In Evans v. State, 109 Ala., 22, 19 South., 535, there seems to have been some evidence from which the jury might have inferred a combination to do an unlawful act, and the dourt said: “If several conspire to do an unlawful act, and death happen® in the prosecution of the com. mlon object, 'they are all alike guilty of the homicide. Each is responsible for everything done, which follows incidentally in the execution of the common purpose, as one of its probable and natural consequences, even though it was not intended, or within the reasonable contemplation of, the parties, as a part of the original design. Williams v. State, 81 Ala., 1, (1 South., 179); Gibson v. State, 89 Ala., 122, (8 South., 98); Martin v. State, 89 Ala., 115, (8 South., 23); Tanner v. State, 92 Ala., 1, (9 South., 613); Jolly v. State, 94 Ala, 19, (10 South., 606). The thirtieth charge was a proper one, and should have been given.” The thirtieth charge referred to was as follows: “(30) The court charges the jury that if they believe from the evidence that Boman, Crawford, and Evans went to the house of Alice Palmer on the night the killing is said to have been done, and an offense was committed by one of them from causes having no connection with the common object for which they went there, the responsibility for such offense rests solely on the actual perpetrator .of the crime, and the jury oan not find the defendant guilty simply because he happened to be present at the time the offense was committed.”

. Bowers v. State, 24 Tex. App., 548, (7 S. W., 247), (5 Am. St. Rep.", 901), was a case of mayhem, the maiming being done in the course of the execution of a conspiracy to whip. Saiid the court: “Upon, the subject of the responsibility of a conspirator for the acts oif his co-conspirators, the rule, as we deduce from the authorities, is that each conspirator is responsible for everything done by Ms confederates which follows incidentally in the execution of the 'Oomimon design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. In other words, the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. 1 Whart. Cr. Law (9th Ed.) sections 214-220, 397; 1 Bish. Cr. Law (7th Ed.) sections 640, 641; Lamb v. People, 96 Ill., 73; Ruloff v. People, 45 N. Y., 213; Thompson v. State, 25 Ala., 41; Frank v. State, 27 Ala., 37; Williams v. State, 83 Ala., 16, (3 South., 616); Kirby v. State, 23 Tex. App., 13, (5 S. W., 165). ... In the recent and cele brated case of Spies v. People, 122 Ill., 1, (12 N. E., 865), (17 N. E., 898), (3 Am. St. Rep., 320), the court said: ‘Whether or not the act done by a member of a conspiracy naturally fiowred from, and was done in furtherance of, the common design, aire questions of fact for the jury.’ We are of opinion that the court erred in not submitting the question above stated to the jury, accompanied by proper instructions explaining the rules of the law hereinbefore announced.”

Com. v. Campbell, 7 Allen, 541, (83 Am. Dec., 705), was an indictment for murder, the homicide occurring during a riot growing out of the enforcement of a draft of men for the anmy. An instruction was asked that, whether the deceased was killed by a 'Shot from within or without the armory, all the parties unlawfully engaged in the homicide were at common law guilty, at least, of manslaughter. It was said- by Bigelow, C. J.: “There can he 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, crimvialiter, for the acts of each and all who participate with him in the execution of the unlawful design. . . . These citations, to which many others of a similar tenor might be added, show that the rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act of one-of a party, for which his associates and confederates are to be held liable, must be shown to have been done tor the furtherance or in prosecution of the common object and design for which they combine together. -Without .such limitation, a person might be held responsible for acts which were not the natural or necessary consequences of the enterprise or undertaking in which he was engaged, and Which he could not, either in fact or in law, be- deemed to have contemplated or intended. No person can be held guilty of homicide Unless the act is either actually or constructively his, and it oan not be his act, iu either sense, unless committed by his own hand, or by some one acting in concert with him, or in furtherance of a comm'on object or 'purpose. . . . The real distinction, is between acts which a man does either actually or constructively, by himself of his agents or confederates, and those which were done-by others acting, not in concert with him or to effect a common object, but without his knowledge or assent, either expressed or implied. For the former, the law holds him. strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed t'o have 'contemplated and intended; for the latter, he is not liable, because they are not done by himself, or by those with whom he associated, and no design to commit them, or intent to bring'about the results which flow from them, can be reasonably imputed to him/’’

The case of Spies v. People, 122 Ill., 1, (12 N. E., 865), (17 N. E., 898), (3 Am. St. Rep., 477), which is the celebrated case of ithe Chicago anarchists, was much criticised at the time the decision was rendered as extending the doctrine of criminal responsibility for acts of co-conspirators beyond reasonable limits. Much of this criticism seems to have arisen from the fact that, in the opinion of the court of last resort, those instructions only were stated and discussed of which complaint was made by the accused, and little, if any, notice taken of the counter instructions given on the motion of the defendants, or by the court on its own motion, which limited, qualified, and explained the instructions asked by the prosecution. Under the Illinois practice, dt seems to be the custom to give instructions .asked by the prosecution; and to give counter qualifying or limiting instructions asked by the defense, and for the murt to ¡add such general instructions as it deems necessary. The instructions in this case are given at length in Sack. Instruct. Juries (2d Ed.). 707 et seq., and an examination of' them shows that, with respect to the acts shown- in that case, they fully give the limitation which we think should have been either given in the seventh instruction now under consideration, or embodied in. a separate instruction, namely, that the accused was not guilty of murder unless the killing was the necessary or probable consequence of the act conspired to be done. Seemingly actuated by a desire to err, if at all, upon the safe side in a case which had excited such deep feeling, the court in that case gave instructions that if a reasonable doubt was raised in the minds of the jury “by the ingenuity of counsel, upon any hypothesis reasonably con. sistenit with the evidence, that doubt is decisive in- favor of the prisoner’s acquittal”; that a verdict of not guilty meant only that the guilt had “not been demonstrated in the precise, 'specific, and narrow forms prescribed by law”; that they were not to convict upon mere suspicion; that the burden was on the prosecution, and that the presumption of innocence was not a mere. form. In instruction ?»(i the jury were told: “It will not do to guess away the lives or liberty of the people, nor is it proper that the jury should guess that the person who threw the bomb which hilled Degan wa.s instigated to do the act by the procurement of the defendants, or any of them. That fact must be established beyond all reasonable’ doubt in the minds of the jury, and it will not do to say that, because the defendants may have advised violence, therefore^ when violence came, it was the result of such advice. There must be a direct connection established, by credible testimony, between the advice and the consummation of the crime, to the satisfaction of a jury beyond a reasonable doubt.” And in instruction 37 it was said: “Therefore the jury must be satisfied, beyond all reasonable doubt, that the person throwing said bomb w-as acting as the result of the teaching or encouragement of the defendants, or some of them, before the defendants can be held liable therefor; and this you must find from the evidence.” Several other instructions were given upon this line, notably instructions 35 and 36.

There seems to be no material or substantial difference of opinion among the members of this court as to the propriety of such a limitation as we have indicated. The difference is upon the question whether the failure to give to the jury such a limitation of the doctrine was prejudicial error. To consider this question, we must refer to the contentions on behalf of the Commonwealth and the accused, as shown by the evidence. On behalf of the Commonwealth, the evidence was directed to showing that there existed a bloody-minded conspiracy, having for its object the killing of various members of the Legislature, and especially the killing of Goebel; that the accused, who held a certificate of election as Secretary of State, and whose office was in contest, was a party to this conspiracy, with full knowledge of its atrocious object, and in pursuance and furtherance thereof was instrumental in bringing armed men to the State capital to assist in its execution. On the other hand, the evidence for the defense was directed to establishing the fact that the men who were brought to Frankfort were brought for the purpose of peaceably assembling to petition the Legislature, in the exercise of the privileges guarantied to them as citizens in the bill of rights, and that such of them as bore arms bore them openly, and solely for the purpose of self-protection.^ Between these two extremes of object in the proof there was room for many varieties of purpose which might be ascribed to the assemblage, and there was some evidence to support almost any of the theories which might thus be constructed. There was evidence to support the theory that the assemblage was for the nurpose of impressing the minds of the members of the Legislature by the physical presence of a large number of men. This might he regarded as a species of intimidation, and need not imply the intent to do actual violence. And this view was submitted by the court to the jury, though without the necessary limitation as to its effect; for by the amendment the jury were instructed that the purpose was unlawful if it was “to alarm, -to excite. terror, or the infliction of bodily harm.” There was undoubtedly evidence to support the theory that there was a combination; that the purpose of the assemblage was to alarm, and to do nothing else. Whether that evidence was to be believed or not w7as a question solely for the jury, under proper instructions. The accused had the right to- have the jury pass upon the question whether that was the 'sole object of the assemblage, and upon the further question whether the. killing of Goebel necessarily or probably would result from such an assemblage; It will not do to say that because the judges would have disregarded such evidence had they been jurors at the trial it is not prejudicial, for the jurors are the sole judges of the weight of the evidence, and to- hold otherwise would be for the court to assume to perform those functions which from time immemorial have been regarded as within the sacred province of the jury.

It was said by Judge Lewis in Bowlin v. Com., 94 Ky., 395; 15 R., 149 (22 S. W., 543): “In fact, it is not the province of the lower court, any more than of^this, to weigh evidence for the purpose of determining whether a person on trial for his life is entitled to an instruction as to manslaughter. But, if there is any evidence tending to show the homicide is of the degree of manslaughter, the accused is entitled to an instruction upon that hypothesis.” See, also, Bush v. Com., 78 Ky., 269; Buckner v. Com., 14 Bush, 603; Brown v. Com., Id., 396.

In Gibson v. State, 89 Ala., 121, (8 South., 98), (18 Am. St. Rep., 101), iit was said: “The testimony of the defendants themselves tended to support every phase of the instruction requested. It mattered not that this testimony may have sprung from parties deeply interested, and have been contradicted by many disinterested- witnesses, so as to be entitled to but little weight in the estimation of the trial judge. It was for the jury, and not the court, to pass on the credibility of the witnesses and the sufficiency of the evidence. Every prisoner a.t the bar is entitled to have charges given which, without being misleading, correctly state the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. The -charge under consideration, was a correct enunciation of the law, and, being supported by the evidence, its refusal must operate to reverse the judgment of conviction. McDaniel v. State, 76 Ala., 1.”

We are clearly of opinion that the instruction as given was not only erroneous, but highly prejudicial. This instruction should be qualified by requiring the jury to believe that the murder was committed in furtherance of the conspiracy, and was the necessary or probable result of the execution of the conspiracy.

The eighth instruction is as,follows: “The jury can not convict -the defendant upon the testimony of an accomplice unless such testimony be corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if “it merely show's that the offense was committed and the circumstances thereof.” It is objected to this instruction that it permits the jury to find guilt from the unsupported testimony of more than one accomplice, and instruction No. 2 was asked by the defense in these words: “The evidence of an accomplice in this case is not sufficient to convict unless the same is corroborated by other evidence tending to show the commission of the offense, and connecting the defendant therewith, and the evidence of one accomplice or cp-conspirator does not and can not corroborate another accomplice or. co-conspirator.” The instruction asked and refused may not be strictly accurate in form, for it may be said that while one accomplice by his testimony does, or at least may, corroborate another, nevertheless the idea is.accurate that they do not corroborate each other for the purpose of conviction,, in the absence of other testimony. The jury should have been told that they could not convict the defendant upon the testimony of an accomplice or accomplices, unless swell testimony be corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. In 2 Roberson, Ky. Cr. Law, p. 1076, it is said: “If two or more accomplices are produced as witnesses they are not deemed to corroborate each other.” In U. S. v. Logan (C. C.) 45 Fed., 872, it was. held that a conviction for a conspiracy can not be had on the uncorroborated testimony of a co-conspirator, nor can conspirators corroborate each other. See, also, 1 Greenl. Ev., section 381, and Smith v. Com. (Ky.) 17 S. W., 182. This doctrine is distinctly recognized in Blackburn v. Com., 12 Bush, 181. It is agreed that this was erroneous, but there' is variance of opinion as to whether it was prejudicial. Unless we can assume to invade the province of the jury, and weigh the evidence, this instruction was necessarily prejudicial, or, at least, may have been so. . The most material testimony upon the question whether the conspiracy was to murder was that of confessed accomplices, and if the jury, in the exercise of their prerogative, disbelieved the other evidence upon this question, they might have reached a different conclusion had they been told that they could not. convict upon the uncorroborated testimony of accomplices. Our views upon this question are sufficiently stated in considering the prejudicial character of the seventh instruction.

For the reasons given, the judgment is reversed, and cause remanded, with directions to award appellant a new trial, and for further proceedings consistent herewith.