| Ala. | Jan 15, 1857
In misdemeanors, there are no accessories, either before or after the fact; but all persons concerned therein, if guilty at all, are principals, and may be indicted, tried and punished as principals. — 4 Bla. Com. 36. By section 3256 of the Code, the distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission
It is a rule of the common law, that if several persons conspire to do an unlawful act, — an act malum in se — all the members of such illegal combination are responsible for the acts of each, done in prosecution of their common purpose. — Frank v. The State, 27 Ala. 87.
It follows from what we have above said, that if two persons conspire to steal the goods of another, and to divide them between themselves as soon as they could conveniently do so; and, in the prosecution of their common purpose, the goods are stolen by the hands of one of them, both are guilty, and may be indicted, tried and punished as principals.
On the trial-of the person by whose hands the goods were not stolen, if evidence be first introduced sufficient to justify the court in the conclusion that such a conspiracy, as that last above mentioned, did exist between him and the person by whose hands the goods were stolen, then the acts done, and declarations made by the latter, while the conspiracy was pending, and in furtherance of the design, are admissible in evidence against the former, although those declarations were made, and those acts doire, at different times, and when the conspirators were several miles apart. The principle on which such acts and declarations are admissible, as stated by Mr. Greenleaf, is, that by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common design; thus rendering whatever is done or said, in furtherance of that design, as pail; of the res gestee, and therefore the act of all. — 8 Greenleaf on Evidence, (3d edition,) §§ 93, 94.
A conspiracy is seldom proved expressly. The evidence in proof of it is almost always circumstantial. If it be proved that the persons who are supposed to have conspired, “were intimate with each other; that they held private consultations; that they pursued by their acts the
The two conversations between the plaintiff in error and West, were clearly admissible in evidence. — Liles v. The State, at the last term; Spencer v. The State, 20 Ala. 24" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/spencer-v-state-6504653?utm_source=webapp" opinion_id="6504653">20 Ala. 24 ; Seaborn v. The State, ib. 18; Mattocks v. Layman, 16 Vt. Rep. 118. And we now proceed to inquire whether the court below committed a reversible error in admitting the evidence as to the payment of “double toll” by West at the bridge at Centreville. No such error was committed, if that evidence is shown to have become admissible at a stage of the trial subsequent to its actual admission, although it was not strictly admissible at the time of its actual admission. — Lawson v. The State, 20 Ala. 65" court="Ala." date_filed="1852-01-15" href="https://app.midpage.ai/document/lawson-v-state-6504663?utm_source=webapp" opinion_id="6504663">20 Ala. 65; Blister v. The State, 26 Ala. 107" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/brister-v-state-6505465?utm_source=webapp" opinion_id="6505465">26 Ala. 107.
The strongest argument for the plaintiff in error, against admitting as evidence against him the payment of the double toll by West, is, that the payment was made after the larceny of the watch was, in legal contemplation, complete as to West. But that argument, as well as every other urged by the plaintiff in error, can be satisfactorily answered. Conceding that the payment of the double toll was made after West had done enough to authorize his conviction for the larceny of the watch, yet there is evidence which conduces strongly to show, that it was made “while the conspiracy was pending, and in furtherance of the common design.” The evidence justifies the conclusion, that the conspiracy between West and the plantiff in error was not confined to the mere felonious taking and carrying away of the watch, but extended to a division of the profits of the larceny, at a meeting to be held between them at another place, as soon as convenient. Having given to their conspiracy that extent, neither of them, when indicted, has the right to call upon the court to
On the trial of the plaintiff in error, the State had the right to prove that he was intimate with West; that they came together to the pi ace where the watch was stolen; that they held private consultations at or about that time; that by their acts they pursued the same object, by similar or different means, one performing one part,-and the other another part of the same, so as to complete it, with a view to the attainment of that same object; that immediately after the loss of the watch was discovered by the prosecutor, and after the flight of West, the plaintiff in error knew that West was making his way to Randolph with the watch ; and that the toll bridge, where the payment of double toll was made, was on the direct road from Scottville, where the watch was stolen, to Randolph.— And after all this proof had been made, and the conspiracy above named shown, there was no error in allowing the State to prove that West, in his flight with the watch, paid double toll at the bridge. It is not usual for men to pay double toll. It is plain from the evidence th'at West did not make the payment for the purpose of implicating’ the plaintiff in error, or injuring him in any way. Why did he make the payment ? Was it not made in pursuance of the conspiracy between them, — in furtherance of it ? The payment itself would not prove why it was made. But, as the other evidence tended strongly to show that it was made while the conspiracy was pending, and in furtherance of the common design; and as a previous conspiracy may be inferred from subsequent acts1; and as any circumstance, which legally tends to corroborate other evidence already legally introduced, is admissible, we cannot hold, that the court below erred in allowing the fact of the payment, under all the circumstances, to go to the jury. — Thompson v. The State, 25 Ala. 41" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/thompson-v-state-6505334?utm_source=webapp" opinion_id="6505334">25 Ala. 41; Stewart v. The State, 26 Ala. 44" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/stewart-v-state-6505451?utm_source=webapp" opinion_id="6505451">26 Ala. 44; Johnson v. The State, 29 Ala. 62" court="Ala." date_filed="1856-06-15" href="https://app.midpage.ai/document/johnson-v-state-6505804?utm_source=webapp" opinion_id="6505804">29 Ala. 62; State v. Haney, 2 Dev. & Batt. 395; State v. Cheek, 13 Iredell’s Rep. 114.
There is no error, and the judgment of the court below is affirmed.