Opinion
[Syllabus Material] [Syllabus Material] Department Two
Appeal from a judgment of conviction in the Superior Court of Mendocino County.
The defendant was indicted jointly with Samuel Carr, John Billings, and George Gaunce, for the murder of William Wright. For the facts of the killing see People v. Brown (No. 10,601), reported infra, p. 345.
COUNSEL
J. A. Cooper, for Appellant.
No brief on file for Respondent.
JUDGES: McKee, J. Ross, J. and McKinstry, J., concurring.
OPINION The defendant, jointly with Carr, Gaunce, Billings, and Wheeler, was indicted for the murder of William Wright, in Mendocino County, on October 15, 1879, and was, upon a separate trial, convicted of murder of the first degree, and sentenced to be hanged. From the judgment he has appealed, and it is contended in his behalf that his conviction was illegal: 1. Because the Court, on the trial of the case, erred in admitting in evidence against him a warrant of arrest, which purported to have been issued against all the defendants by fictitious names, but which, on its face, was illegal and void; 2. In admitting in evidence the testimony of defendant Carr, an accomplice, who had been allowed to turn State's evidence, to prove a conspiracy between the defendants to commit crimes against the people of Mendocino County; 3. In admitting in evidence the acts and declarations of some of the alleged conspirators; 4. In refusing and giving certain instructions to the jury upon the subject; and, 5. In certain errors of law committed at the trial.
1. The evidence is claimed to have been inadmissible, and the instructions given improper, upon the grounds that the one was irrelevant and immaterial, and the others erroneous, because it appeared that the deceased was killed while engaged in an unlawful attempt to arrest the defendants, under the illegal warrant of arrest, and not in pursuance of any conspiracy.
But, assuming it to be true that the deceased was killed under such circumstances, there was no error committed in admitting in evidence the warrant of arrest. No objection had been made to the complaint upon which the warrant was issued, and the warrant itself was, in connection therewith, admissible as part of the circumstances in connection with the other circumstances, attending the killing, and as tending to reduce the crime of which the defendant was accused, to manslaughter. Where persons have authority to arrest, and are resisted and killed in the proper exercise of such authority, the homicide is murder in all who take part in such resistance. But, if the process be defective in the frame of it, as if there was mistake in the name of the person on whom it is executed, or if the name of such person, or of the officer, be inserted without authority, or after the issuing of the process, or if the officer exceed his authority, the killing of the officer in such case by the party would be manslaughter only. (2 Archb. Crim. L. 242; Roscoe's Crim. Ev. 698.)
2. But the record shows that the deceased was not killed in any attempt to arrest the defendants under the warrant which was issued. He had, it is true, accompanied the officer, to whom the warrant had been issued, with the intention of searching for the defendants to arrest them; and he was killed while making the search, by the defendants, who lay in ambush; but at the time of the killing, neither the deceased nor the officer whom he accompanied, knew of their presence, nor had committed any overt act towards arresting them. The defendants lay in ambush, and they were there not for any lawful purpose, but in pursuance of an agreement which they had made to go into Mendocino County to commit larceny, burglary, and robbery, and particularly, to rob the Tax Collector of that county, and to resist by force any who might attempt to interfere with them or to capture them. All of them had been ex-State Prison convicts, and, in pursuance of their agreement, they met in Mendocino County, in the spring of 1879, armed with Winchester rifles, guns, and pistols, and supplied with ammunition, and opened their unlawful enterprise by stealing a steer, which they killed and converted into jerked beef for their use. In that act they were discovered by a Constable of the county, who made a complaint against them before a Magistrate of the county. The Magistrate issued a warrant against them by fictitious names; and upon receiving it, the Constable summoned a posse comitatus to assist him in arresting the defendants.
One of the posse was the deceased, Wright, who accompanied the officer in search of the defendants. In their search the posse came to the place of an abandoned camp about four miles to the north of Mendocino City, where, having discovered the remains of the steer half buried, and the tracks of human footsteps on the ground, and some pieces of dried beef here and there on the bushes, they followed them for about half a mile through the woods until they came to a densely wooded gulch, where they found an extinguished camp-fire, the ashes of which were still warm, but they neither saw nor heard any human being; but as the deceased, who was in front of the posse, stooped over to feel of the ashes, the defendants, who lay in ambush on the side of the gulch--some of them within the hollow of the half-burnt trunk of a redwood tree, through a hole in which they could fire upon persons below them, without themselves being observed, and others on either side of it, concealed by the shoots from the roots of the tree--fired a volley of some eighteen or twenty shots upon the posse, killing the deceased and one other of the party. There was testimony which tended to show that the defendant fired the shot which killed the deceased, and other testimony which tended to show that the shot was fired by Billings, another of the defendants. But both were present in ambush, and so far as the question of the guilt or innocence of the defendant is concerned, it is of no particular moment whether the shot which killed the deceased was fired by the defendant or by Billings, or by any other of their confederates. Being in ambush, co-operating with each other for the purpose of executing or attempting to execute their unlawful enterprise, the defendant is guilty of the homicidal act, whether it was committed by his hands or the hands of any of his confederates. If it was an act born of their unlawful enterprise and part of it, and executed in pursuance of it, every one of them was equally guilty in law. Where men confederate together to commit crimes of a nature or under such circumstances as will, when tested by human experience, probably result in taking human life, if such necessity should arise to thwart them in the execution of their unlawful plans, it must be presumed that they all understood the consequences which might be reasonably expected to flow from carrying into effect their unlawful combination, and to have assented to the taking of human life if necessary to accomplish the objects of the conspiracy. (Lamb v. The People , 96 Ill. 82.) If, therefore, while armed and lying in ambush for the purpose of executing a common design, one conspirator commits murder, it is murder committed in furtherance of the common design, not only by him who commits the crime with his own hands, but in all who enter with or take part in the execution of the purpose for which they confederated together. (1 Russ. on Crimes, 24; 1 Bishop on Crim. L., c. 23, § 435; Brennan v. The People , 15 Ill. 516.)
3. And the acts and declarations of each, made while the conspiracy was pending, are competent evidence upon the trial of any one of them. A conspiracy being established, proof of the acts, admissions, and declarations of any one of the conspirators, in pursuance and furtherance of the criminal enterprise and in reference to it, is competent evidence against all. (Subd. 6, § 1870, C. C. P.; Bloomer v. The State , 48 Md. 521; People v. Cotta , 49 Cal. 166, 171; People v. Geiger, id. 643.) It follows, that there was no error in admitting in evidence testimony to establish a conspiracy between the defendants and to prove the acts and declarations of the conspirators pending the conspiracy.
4. Nor did the Court err in its instructions to the jury upon that subject, or in refusing to give the instructions asked to be given by the defendant's counsel. For the deceased was not killed by the defendant in any attempt by him, as one of the posse, to arrest the defendants, with or without a warrant. Ignorant as the posse were of the presence or concealment of the defendants, no demonstration had been made against them by the officer or any one of the posse. The defendants had not been assailed, nor was their liberty invaded. They knew nothing of any hostile intent against them by those whom they observed from the ambush in the gulch below them. Nor did they know whether a warrant had been issued for their arrest. The officer had neither time nor opportunity to announce his office or his presence, or whether he came with peaceful or hostile intent. Under such circumstances, the killing of the deceased was wanton. It was not done in necessary self-defense, nor in resisting an attempt to arrest, or to prevent an unlawful arrest under an illegal or void warrant; but it was the logical consequence of their armed unlawful assemblage in pursuance of the conspiracy between them to commit crimes by force and violence, and for the prosecution of which they were there, armed and in ambush. The verdict of the jury is, therefore, not erroneous.
5. The expressions of the deceased at the time he was shot were admissible as a part of the res gestoe. (State v. Porter, 34 Iowa 131; Jackson v. State , 52 Ala. 305.)
6. Voluntary confessions of guilt, made by a prisoner, are admissible in evidence against him; but confessions made by him at other times, of an entirely different character, are not admissible in his favor. In what a man says against himself he is presumed to speak the truth; but he is not allowed to make evidence for himself.
7. It was not error to refuse to postpone the trial of the case on account of an absent witness for the defendant; because the fact which the defendant alleged he expected to prove by the witness was admitted by the District Attorney; because the witness himself was produced at the trial, and because no exception was taken to the ruling of the Court in denying the motion.
8. It was not error in the Court to read to the jury, as part of its instructions, certain sections of the Penal Code of the State, applicable to the case, which were not reduced to writing, or taken down by the short-hand reporter. (The People v. Mortier , 58 Cal. 262.)
9. Nor was error committed in disallowing the challenge taken to a juror who had formed a hypothetical opinion from merely reading what purported to be a statement of the case in a newspaper. Such an opinion does not disqualify a juror, especially where, as in this case, it appeared from the testimony taken on the challenge, that the impression made on the mind of the juror was of such a character as to be removable by slight evidence. ( § 1076, Penal Code; People v. McCauley , 1 Cal. 379; People v. Reynolds , 16 id. 128; People v. Williams , 17 id. 146; People v. Symonds , 22 id. 348.)
There is no error in the record prejudicial to the substantial rights of the defendant, and the judgment and orders of the Court below are affirmed, and the Court below is directed to fix a day for carrying the judgment into execution.