State v. Lesesne

I agree with the Chief Justice that the evidence is sufficient to warrant a reasonable inference that appellants were guilty of conspiracy to gamble and to avoid arrest by flight, if the officers of the law should come upon them while gambling. But that is not the issue to be decided. They were not indicted for a conspiracy to avoid arrest, if, indeed, that is indictable, but for assault and battery. The real issue, therefore, is whether proof of facts and circumstances which warrant an inference of a common design to avoid arrest for gambling by flight is sufficient to warrant the further inference of a common design to commit an assault and battery upon an officer who might attempt to arrest them; for upon that theory alone they were convicted, since there is no evidence that either of them aided, abetted, or encouraged the one who actually committed the assault and battery, who was, no doubt, the one that pleaded guilty. The question, therefore, is, Can a conspiracy to commit an assault and battery be legally inferred from proof of a common purpose to avoid arrest by flight? I think it clear, on reason and authority, that it cannot. Bishop, in his work on Criminal Law (section 634, vol. I), says:

"Even where persons are unlawfully together, and by concurrent understanding are in the actual perpetration of some crime, if one of them of his sole volition, and not in pursuance of the main purpose, does a criminal thing in no way connected with what was mutually contemplated, he only is liable. Thus if, in England, poachers join in an attack on the gamekeeper, and leave him senseless, then, if one of them returns and steals his money, this one alone can be convicted of the robbery. So, if two have committed a larceny together, and one suddenly wounds an officer attempting to arrest both, the other one cannot be convicted of this wounding, unless the two had conspired, not only to steal, but to resist, also, with extreme violence any who might attempt to apprehend them."

Again:

"Sec. 635. If several are out committing a felony, and, on alarm, run different ways, and one to avoid being taken maims a pursuer, the others are not guilty parties in themayhem."

At section 637, he says:

"If two combine to fight a third with fists, and death accidentally results from a blow inflicted by one, the other also is responsible for the homicide. But if the one resorts to a deadly weapon without the other's knowledge or consent, he only is then liable."

In People v. Knapp, 26 Mich. 112, Knapp was charged with the murder of a young woman on the following facts: He with several others carried deceased into a house owned by Knapp for immoral purposes. While there, she either fell or was thrown from a window, and sustained injuries from which she died. There was no testimony that Knapp himself did the act, and he was convicted on the theory that he was responsible for the conduct of those who did it. The trial Court charged the jury that, if defendants combined for the purpose of inducing the deceased to go into the house for immoral purposes, and, while there, in order to avoid arrest or exposure, threw her out of the window, without intending to kill her, it would be manslaughter, because they were engaged in an act against public morals, and unlawful; and refused to charge that, if the act was done, under the circumstances stated without the concurrence of Knapp, he should not be convicted; and, also refused to charge that if the parties attempted to escape, and one of them, without the knowledge or consent of the others, helped or threw deceased out of the window, then only the one who actually did the act is responsible. Upon this evidence and charge Knapp was convicted of manslaughter. On appeal, the Supreme Court reversed the conviction, saying:

"The effect of these rulings was practically to hold that parties who have combined in a wrong purpose must be presumed, not only to combine in some way in escaping arrest but also to be so far bound to each other as to be responsible severally for every act done by any of them during the escape.

"It is impossible to maintain such a doctrine. It is undoubtedly possible for parties to combine in order to make an escape effectual, but no such agreement can lawfully be inferred from a combination to do the original wrong. There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for any one to do it. In other words, the principle is quite analogous to that of agency, where the liability is measured by the express or implied authority. And the authorities are quite clear, and reasonable, which deny any liability for acts done in escaping which were not within any joint purpose or combination.Rex v. Collison, 4 C. P. 565; Reg. v. Howell, 9 C. P. 437; Rex v. White, R. R. 99; 1 Bishop's Cr. L. (5th Ed.), secs. 633-642."

If appellants were lawfully convicted upon the evidence adduced, the necessary logical result is that, if the officer had been killed, appellants could have been convicted of murder. Would this Court sustain a conviction of murder upon such evidence? If not, the judgment should be reversed.

See note to People v. Lawrence, 68 L.R.A. 193.