is true that JUdge STORY, in another part of his charge, states the rule as tc. theresponsi!:>ility of one for the acts of others, done in the prosecution of a common, unlawful design, in almost the same words as are used in State v. Shelledy. [8 Iowa, 477,] * * * but he adds: 'More especially the death tie murder. if it happens 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.''' Now, reading from the same author, 486, note, in the case of Ruloff v. People, 45 N. Y. 213, a case tried before the courts in New York, and finally appealed to the supreme court of New York; and the supreme court, in passing upon the question, said: "If the homicide was committed by one of several persons in the tion of an unlawful purpose or common design, in which the combining parties .bad united, and for the effecting whereof they had assembled, all were liable to answer criminally for the act; and if the homicide was murder. all were guilty of murder, assuming that it was within the, common purpose." "The evidence showed that the blow which caused the death was inflicted by one of three burglars while in the act of. robbing the storEl; it was uncertain whether the accused actually inflicted the blow, and thus the question was raised as to his responsibility for such an act committed by one of his confederates. There was evidence from which to infer a purpose Oll the part of the burglars of :resisting to the death anyone who should oppose them, and the charge of the jUdge that sucb such an illegal purpose must have been formed. before the actual commission of the offense, although not necessarUy at the time when the parties went out with thecommoiJ. purpose of larceny, is held by the court to be a cottectstatement of the law." Here is a that was passed upon' years ago by the supreme court of Illinois, iuwhich a number of parties had burglarized a house in Chicago, stolen alot of goodS, and some of the parties"':-whether they had been in the burglary or not they were not able to say-but some of the parties took these goods and were starting towards a fence-house, with them,-they call it in the city a "fence-house," a place where they receive stolen goods,-and while standing in front of that house unloading the goods the/were interrupted by a policeman, that some one of them shot. Thecoui't, in that case, said it was not the act of all, because the fact of unloading these goods there at that place was not an act which naturally or'reasonably or probably in its execution would jeopardize human life; but if it had been an act that did put human life in danger, then the principles of law that I have given you would have been applicable; and here is what the court declares the law to be: . "The principle which underlies and controls cases of this character is the elementary and very familiar doctrine, applicable alike to crimes and mere civil injuries. that every person must be presumed to intend and is accordingly held responsible for the probable consequences of his own acts or con· duct. When, therefore, one enters into an agreement with others to do an unlawful act, he impliedly assents to the use of such means by his co-con· spirators as are neoessary, ordinary, ,or usual in the accomplishment of an act of that character. But beyond this· his implied liability cannot be extended. So, if the unlawful ,act agreed to be done is dangerQus or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force or violence, which may..result in the taking of life unlawfully,
. UNITED STATEs'll. BOYD.
every party to such an agreement will be held criminally Hable for whatever any ofbis co-conspirators may do in fUTtherance of the common design, whether he ill present or not." Lamb V. People, 2 Crim. L. Mag. 472. Now, yOu pass upon thequestionas to whether or not the purpose to rob is a crime that is committed by force and violence, and when attempted the exercise of force and violence is necessary to consummate it. That . is one of the very ingredients of that crime. Then, is it an act of that character which may result in the taking of life unlawfully, or which would be dangerous to life? If so, it woulq be homicidal in its Or would the accomplishment of that crime necessarily require the use of force, and that force so used as to jeopardize human life? If so, it is the doing of an act that puts human life in danger, and which puts it in danger as a natural or probable or reasonable consequence of the act agreed to be done. And I repeat again that if the evidence shows in this case that there was a purpose entered into by these two defendants, together with Davis, to enter upon the crime of robbery upon Dansby, or any of these parties at that place,-I say any of them because Dansby had a right to defend the others, or the others had a right to defend him as against a crime of that character,-ifthey had agreed to enter upon a crime of that kind, and had gone to the place where the attempt was made to commit it, and were in the act of committing it, and in the course of the commission of that act some one of the party fired the shot which took the life of Dansby, that shot was the shot of all; and in such a case as that, if the evidence shows that state of facts,' you have that which shows premeditation, you have' that which shows deliberation, you have that which sho'Ys a purpose that was conceived and matured beforehand, to do an act"which was naturally and probably dangerous and deadly in its character; to take the property of these men,or of a man, from his presence or from his person, by the exercise of violence. That is the crime of robbery. Now, the converse of that proposition I have given you as recognized by the supreme court of Illinois, and is justly recognized where the unlawful act agreed to be done is not of a dangerous or homicidal character, and its accomplishment does not necessarily or probably require the use of force or violence which may result in the taking of human life unlawfully. No attach merely from the fact of having been 'a party to such an agreement. That would repudiate the doctrine enunciated in the old English case, where a party went out to steal chickens, because the stealing of a chicken is not a thing that necessarily or naturally or probably, from the way it is executed, would jeopardize:a human life. But if it is a demand made upon a person for his money, whether that demand is made in words, or made by an act of violence, or attempted violence, that presents a state of case where the crime attempted is very different, because in the first case named (of the stealing of the fowl) the killing would be' collateral to the purpose to steal, and in the case of robbery the killing is an act that riafurally and reasonably and probably springs out of the pUl'pose to rob, and all who agree to enter upon that ro1>bery, and who are present at the place where it is being committed, oratv,45F.no.12-55
temj}ted to be committeQ;. :while parties are in the act of committing it, they are aidmg, and aBSisting anddeouI'lseling and abettinginits commissioli, and are responsible for the crime growing out of that robbery of human life. And I repeat that the which may result in fact that the robbery isbeing committed, and if a human life is taken in the commission of it,sQows deliberation, shows preIlleditation, shows that state of case that ex.hibits tha.tit, was thought of beforehand, so as to . bring,into existence malice aforethought. That doctrine has been recognized,when it comes by all the states, where they say by their respective staJutesthat, he wpo kills in an attempt to rob, to or burglary, or any of these high. crimes, commit proof shows that fact they but show is guiltY9f murder; tllat whenever law that is administered here is a state a state of case that which evidences premeditation, and shows istence of malice aforethqught, and consequently the existence of murder., Now, that isthe principle that has. been invoked \lpOn .the part of the government. You are tc;> take it; you are to find out what the truth of the Case is, and to apply ittq that truth that fits it. ; If it. does not because that,lis nqt the truth Qf.. the case, th!tt state of case is not made by the evidence; .the becOmes; in,applicable.The qther principle invoked is thatthese parties were attepwting to arref!t these defendants for the sake of a reward., ,Now, there is right in. the hands of the citizen arrest ofanother citizen; but pefore that right can be executed to make certainconliitions must be proventQ eltist. In the first place, it must be proven that the partie,:lsought to be .arrested were guilty of a crime, Buch ali robbery. If shows that prior to that time these tw'o defendants, together the other party, had been ovex here and robbed :testified here, this witness who was here,) that Rigsby, (this man that a crime.had been the crime 9f.robbery };tad . been .lllittedsuQh as would private citizen the right to arrest the party who had committed it,Jhat is the first proposition that must be proven ¥>exist by' the testimony. before a private, citizen can make an arrest even for a high a crime such as he seeksto make the arrest for had. been, committed by some one. That must be shown as a proposition that istrue. Then, that hewho.is seeking to make the arrest must have reasonllble ground to believe that the person he is seeking to arrest was. the party ,who cpmmitted that, crime. First, a crime must lle shown tohavEI been CO.\Dmitted. .Then it must be proven that the parties who /lought to arrest had ground to believe that the parties they were to al'rest were the oJ:l.es .that committed that setqf facts is. proven, any private. citizen has a right that crime. to make the ,$frest,. That is the laW, and it is. thel\lwthat puts a power the hands.oithe protection of himself,ap.dother citizens. . First, R' crjme be prGven. Then the -Pl+rty.seeking to make the arrest have reasonable ground ,to believe that the person he of thllt crime. If so, is seeking to' arrest is the party who he can proceed to make .the Rf,'l to the. manne.!; in whi9h that power shall be ;The law defines the
'. .. t : ,O! UNITED STATES V. BOYD.
that power shall be as, clearly 'is possible to be done, both QY officers and, a citizen an arrest, and the reasonable and the proof showsa ground toqelieve that the party, he is seeking to arrest is the one guil.ty to llis.own sarety, he of it, if it is possible ,to do: so wtth due required:to himself )mqwnand his mission but he has,a right, just, as the officerhas,:to stand upon the principle that he is to seek his own safety and his own protection, and if, when' he is seeking to, make'the arrest or proceediflg' todo so, the opportunity to make his Sion known is cut off by a deed of actual or threatened violence upon' the part of the' .person ,he is seeking to arrest, then the fact that he not make known who is and what his mission is before the party who cuts· him off.fromthe privilege or opportunity of making known his purpose; and who he is, does not deprive him of the right, if he is lawfully' proceeding upon that mission, to stand upon the defensive and seek his own, protection 'all ,the time.. Ifhe is fired upon, or an attempt ¥lade to fire <)n him, when he has that purpose in view, before he is en· abled to make the purpose known, he is thereby cutoff from proclaiming his object by an act of violence or threatened violence, and he can stand upon the defensive because he is in the right,he is in the tion of a lawful power; l!-nd -he who so acts violently, or by such at": tempted violence, is to blame. When he is seeking to execute that power in' that way under the facts I have enunciated, which give him the right to execute the power, those who resist are in the wrong, and if they kill those who are seeking to arrest them, or anyone of them, they are guilty of the crime of murder, if the party seeking to make the arrest is proceeding in the w'ay I have named,which is recognized by law as a legal and proper method of seeking to make abarrest. Now, that is the principle bearing upon that doctrine of the law that has been in voked in this case. You are to see whether that is the state of case that exists here. If so, you are to make the appiication of the principles of law to that state of ,case if it is proven. Now, again. There are two parties charged with this crime. It is necessary, therefore, that I should, briefly give you the principles of the law how more than one person may commit a crime. I have already given to you a state of case which shows how more than one person may commit it. When they have agreed to enter upon the commission of a crime which necessal'ily or probably endangers human life in its cOmmission, whenever they agree to enter upon it,' and do enter upon the commission of a crime of that kind, and are present at the place in the execution of the purpose of robbery, they araaU present aiding and abetting in the act of killing. The law says tbat those who participate, those Who with their own hands, or with his own hand, does an act which is a crime, that he is responsible for this act. It says' further all those who are present at that place, and are participating in that which produces the result, whether the primjl.ry purpose was to bring about that result, 01 the primary object was to do something else which would naturally duce such a result, are responsible. All' persons who are present at
time of the commission of a crime are principals, although only one committed the act, provided all are proven to have confederated and engaged in a common design of which the perpetration of the' crime is apart. I will read from Crim; L; Mag. page 351, note: ..All persons who are' prElsent at the time of the commission of a crime are principals. although only one committed the act, provided all are proven to have confederated and engaged in a common design of which the perpetration of the crime is a part.' This doctrine of criminal combination is firmly establislled in our criminal jurisprudence. and the casell furnish numerous illustrations. All are held responsible"because the wip of each individual contributed to it; each intended that the ,crime should be perpetrated. Thus, in (Jreen y. State, [13 two confederated to commit a murder. Only one did the killing. The' i>ther being present, he was held' equally guilty. What. in the sense of the law. is meant 'by being 'present, aiding and abetting. is thus stated in FostE;lr'sCrown Law. That when Ule,law requires the ence of the accomplice at ,\<be perpetration of the fact in order to render him apriu<:,lpal it does not, rljquire a strict, actual, immediate. presence, such a presence as would make him an eye or ear witness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself. and each takeththe part assigned him; some to commit the fact. others to watch at proper distances and stations to prevent a surprise or to favor, if need be, the escape of those who are IDore; immediately engaged. They are all, prOVided the fact be. committed. in the eye of the law. present at it; for it was made a common cause with them"each man operating ill his station at one and the same instant. towards the same common end, and the part each mall took tended to give countenance, encouragement. and protection to the whole gang, and to insure the success of their common enterprise." So that aU those who are present at the place where the killing transpired, eIther in the execution of a direct purpose to kill, or in the execution of a purpose to rob; out of the attempt to execute which purpose all present, provided they are there in purgrows a killing, then /:!U!lnce of l1to engage either directly or immediately in thekWing orin 'the .act of robbing. Now, that, of course, implies a previous agreement entered into beforehand. .That, as I have told you, is called a "conspiracy,'" an agreement either expressly or tacitly .to commit an unlawful act; in this ease to commit the crime of robbery. That, of course, only be proven as a rule by circumstances, because wh.en it exists it is something that is confined to those who enter into it., ·.,rhey do not proclaim their purpose upon the house tops; they do not call in a number of jurymen to witness the act that they may pass upon it; theydo .not make it known to anybodyoutside of the the only way you can ascertain the existence of a wicked undertaking or agreement such as is named a "conspiracy" by the law, is to drag it to th!'llight ofday by circumstances. The association of the parties together, fact of their participation in a common design, the tact of their being associated together at that place, and being there all at time, are facts and circumstances that may be taken into consideration to show this undertaking that was entered into by them. It is not necessary show it was entered into by so many formal words. !tmay be tacitly Emtered into. If a man, with
UNITED STATES "'. BOYD.
the understanding that another purposes to rob a third, joins him, goes to the place where the attempted robbery is made, and is there for the purpose of aiding him, he agrees to it just as much as though he had entered into an obligation in writing to assist him. It is an agreement in the law. That is the way you are to find it, by the relation that apparently the parties bear to each other, by their being there at the place, by their participating in the common enterprise, by their attempt to participate in the common enterprise. All these things are to be taken into consideration by you for that purpose. Now, it becomes necessary for the court to remind you of what figure these other crimes that have been proven cut in the case. This crime of the robbery of Rigsby may be taken into consideration by you in passing upon the question of the identity of the defendants. It is a competent fact for that purpose. You will remember that the evidence shows that goods were found upon the person of one of these parties who was present at this ferry when the killing of Dansby took place, that were sworn to by Rigsby as having been taken by .the three parties, the man Davis, or Myers, and these two defendants, from his store. That would be evidence that might be taken into consideration with the statements of these colored witnesses, who were present at the time, and undertook to point out and identify these defendants. That may be taken into consideration for that purpose. If you believe in the theory that there was an attempt made to arrest upon the part of these' parties, and that the attempt was not made by these defendants together with Davis to commit a robbery upon them, then the fact that the robbery of Rigsby had transpired, and the robbery of Taylor and these other robberies that have been proven before you, may be taken into consideration to show that crimes had been committed that would give the citizen the right to make an arrest, provided there was reasonable ground to believe, in your judgment, at the time, that the parties they were seeking to arrest were the ones that had committed those crimes. They may be taken into consideration forthat purpose. You are not to consider these other crimes as make-weight against the defendants alone; that is to say, you are not to convict the defendants because of the commission of these other crimes. They were admitted for the specific purposes that I have named. They are not to influence your minds so as to induce you to more readily convict them thanyt)u would convict them if the crimes had not been proven against them; That is the figure they cut. That is the reason they were admitted as testimc;my before you. NoW, gentlemen, I have given you the principles of law this crime of murder. I have given you the law telling you in what·cases all who are participants in the commission of some other crime would be .held responsible for a murder growing out of that crime. If it is the crime of robbery that was entered upon, and they were all participants according to the law I have given to you making parties participants in that crime, in the attempt to consummate it, and while that attempt was be!ng mads j or the purpose was being executed, Dansby was killed, why the pistol was held in the hands of all, and the bullet fired from that
pisjx>l, gun C"\\i'hichever it may be) was the bullet Qf.liDI' and ·they are all equallyrespcinsible ina case Of that kind. You ·ltl!e.tolearn from this evidence: what the truth of tliecase You are the judges of the credibility ofthe witnesses. You ihavEfpQsitive eye-witnesses to this occurrence, persons whQ,were present atthetimeit transpireif,-at the time Dansby was shot. Y0utake the testimQny of these witnesses; you see wheth'erit is whetherit is probable in its own light and ill the light of the otherevideneej and, as the factSt were called out upon examinati.on of the witnesses by defendants' counsel, it is perfectly proper and rightwben that is·tbecase for you tQ take into cQnsideration, the statements made by these witnesses at or about the time of' this occurrence, either in contradidtionof what they testified to upon the stand Qr in corrQbo,ration Qf what they'stated as witnesses, if they made' the same statements upQn the stand as ·made by them after the 'occurrence as to why orhQwthis thing transpired, why these always are proper, having been calledQut in that way ,to be taken into cQnsideration by YQU as cQrroborative facts Qf what tl).eysaid upon the stand. lfthe converseis truej and they made statements that were cQntradictQry in substantial parts as to what the purpose of the parties was, and what thilywEire doing at the time Dansby was killed, why you have a right to take that into considerationas .contradicting them. If you are satisfied from the whole of this testimony beyond a reasonable dOll bt of the guilt of these defendants.of the crime of murder, your duty is to convict; and, if so, you will convict them. Youwill say that "We, the jury, find the defendants guilty of murder as charged in the first count of the indictment." If you are not so satisfied, that is, satisfil:ld beyond a reasonable doubt, your duty is to acquit them. And you must be sati"fied beyond a reasonable doubt as to all of them before you convict them. If you are not satisfied as to all, then your duty would be to acquit the one of whose guilt you are not so satisfied. . Now a little further as to this rule that says you must weigh the credibility ofthe evidence; : You must pass upon the amount of credit you will attach to every fact.' You must do that before you can say whether the facts are sufficient to prove a proposition is established as asserted. That requires you to look at the testimony of each and every witness in its own light, and in ·the light of the other facts. You consider the relation that the witnesses bear to the case, and the interest they have in the result of the case. If they are to be affected seriously by the result of the case, by the verdict, as is Stanley in this case, why then, in passing upon Stanley's evidence, you are to consider that relation that he bears to the case. The highest interest and greatest Interest a man has in this ,life is the interest he has in his own life. He will make a greater sacrifice to preserve that than he will any other right that belongs to him. That is human nature, applicable tQ all of us. When you are passing upon the testimony of a witness so situated as that his life is being weighed in the balance, if you would do justice, you must pass upon his statement in the light of the attitude he' bearsj in the . light of" the interest he 'has to make state-
UNITEDS·'.'ATES V. BOYD.
ments of a certain character in the case; in the light of the motive that may prompt him or influence "him to make statements that would control you or influence your minds in.his favor.. Now, you weigh his evidence in that way,and you weigh it again in the light of the other evidence in the case. If the other evidence contradicts him, why it weakens his evidence to the extent that you attach credit to the contradicting facts. If it corroborate what he says, why it is strengthened as you may attach credit to the corroborating facts. You will understand that under the law you are not to draw any inference against the other defendant, Boyd,because he did not go upon the stand. The law says that vou shall not draw anv inference against him for that reason. You have'a to draw an inference against.a man if the proposition is reasonablyestablished agaiust him, or a presumption is created by other facts. If ho.has the means. reasonably at hand outside of his own testimony ofrafuting that presumption and overthrowing it, and be does not do it, that creates a presumption against him, but he may go upon the stand or not, as he pleases. If he does not choose to go upon the stand, you cannot draw any inference against him because of that. What inferences you may draw against him must come to your minds from the other testimony in the case, and not from his failure to go upon the stand. Now, gentlemen, you will take all this evidence, you will take these rules of law I have given you, andif,whenyou have considered the evidence, and found what you believe to be the tr:uth of the case, and when you make the application of the principles of law to that truth and that .result is produced by that action on yoqrpart is a result that fastens upon your minds a well-grounded belief that there .is guilt, and guilt of murder here as charl!ed, your duty would be a convict, because in suoh a case as that you as reasonable men outside of the jury-box, all reasonable and just and impartial citizens, looking into the truth or falsity of a charge preferred against another citizen, when the proof car- . ried your minds that far, 'Would believe the charge, and you would act upon that belief. That is what is said by the law to establish .the case to such an extent as to satisfy the minds of reasonable men so that they are convinced beyond a reasonable doubt. That is what is meant by proving a case beyond a reasonable doubt. It does not mean to prove it beyond any doubt, that it must be demonstrated absolutely,so that there is so cavil or conjecture or surmise or no possible doubt that can be arrayed against the conclusion. There is no conclusion that a tOan ever arrives at that there is not some sort of doubt that.may be arrayed llgainst it. But reasonable men pay no attention to that kind of a doubt. They are not influenced by such doubts. They must be such doubts as that reasonable men permit their minds to be influenced by them. So. iflhe case is proven so that it can be recognized and known by you as being established to that degree of moral certainty that you would be satisfied of the truth .of it as citizens, if it is proven so that you can say that it is established beyond a real substantial doubt, your duty is to convict. If not, if there is a real substantial doubt of guilt in the case,your is to regard that doubt, .and act upon it, and acquitupoll it. That
means a real;snbstantial doubt of guJIt, flowing naturally and reasonably to your minds from the evidence in this case, viewed in the light of the Ia'" that may be applicable to the truth of the case, and leaving your minds in that condition that you aTe not able to say you have an abiding conviction to a moral certainty of the truth of the charge. If your minds are in that condition, then there is no guilt established. If they are carried beyond that by the proof in this case, and by the law applicable to the truth of it, then they are in the field of oonviction and belief; then the case is established. I submit the case to It is one of great magnitude, great importance. I .ask you to do that equal and exact justice that you are commanded by the law of your country, by the mandate of that law, by the oath you have assllmed. I feel satisfied in submitting it that you will do that equal and exact justice that ought to be done by honest and impartial citizens, sitting in the jury-box. Gentlemen, you have the case.
STATES tl. LOGAN
(C'lircuU' Court, N. D. Texas.
March Term, 1891.)
CONSPIRACy-To DEPRI,VB OJ! RIGHTS RBLI> UNDER THE CONSTITUTION AND LAWS 011' THE 'UNITED STATES.'
When.a citizen of the United States is committed to the custody of the United States marshal or to a state jail by process issuing from one of the courts of the United States, to be held, In default of bail, to await his trial, on a criminal charge, within the exclusive jurisdiction of the national courts, such citizen has a right, under the constitution and laws of the United States, to a speedy and public trial by an impartial jury, and, untU tried or discharged by due process of law, has a under said constitution and laws to be treated with humanity, and to be protected against all unlawful violence, while he is deprived of the ordinal'Y means of defending and protecting himself.
MURDER-COMMITTED IN THB PROSECUTION 011' SUOH CONSPIRAOy-JURISDIOTION.
Persons who conspire to deprive citizens of such rights are offenders Rev. St. U. S. § 5508, and if in the commission ot such offense murder is committed by them, are liable to be tried aud punished in the United States courts for suchmurdel' under Rev. St. U. S.. § 5509.
CONSPIRACy-AcTS AND DECLARATIONS 011' CO-CONSPIRATOR,
Each co-conspirator is liable for the acts and bound by the declarations of his coconspirators, done or said during the continuance of the conspiracy, touching its o.bjectaud conduct; and it immaterial at what time he joined the conspiracy, or whether he was actually present when the particular acts were committed. testimony of a
A conviction for conspiracy cannot be had on the co-conspirator, nor can co-conspirators corroborate each other.
The fact that members of a conspiracy to otrer vio.lence to prisoners under arrest are in charge of them as deputy-marshals or guard does not lessen their guilt.
WITNESS-CONVIOTED Oil' INFAMOUS CRIMB.
Persons convicted and vunished for an infamous o1rense iu the state Co.urts are competent witnesses in tlie United States courts,their·credlbility being a question for the jury. Jurors are no.t at liberty to. doubt as jurors if they would believe as men.