Stewart v. State
26 Ala. 44
Ala.
1855
Check Treatment
CHILTON, C. J.

— There is no pretence that the appellant Stewart had any connection ivhatever with the writing of the letter by Gordon to Lilly, which was read in evidence against *47him, — no evidence that be was cognizant of it, or acted in concert with Gordon, or in anywise even partook of the ill-feeling which is evinced by the letter as existing between Gordon and Lilly at the time the letter was sent. Neither does it appear that, at the time when the offence was committed by Gordon, and in which the prisoner participated, anything occurred which could connect the prisoner with this letter by relation. All that does appear is, that Stewart was a 11 particeps criminis,” — that is, as we' understand it, the prisoner participated in the assault made upon Lilly by Gordon; but it does not follow from this participation, that he is to be charged with or affected by the wrongful acts of Gordon anterior to that time, which have no connection with the offence intrinsically, and with which he is not shown to have been connected by concert or otherwise. Gordon may have been influenced by the most settled and deadly hostility, and yet the defendant, Stewart, may have acted upon some sudden ebullition of passion, in the absence of all preconceived malicious design. In such case, he might be a particeps with Gordon in the assault, and yet not partake of his previous acts evincing his malice. If, however, with a knowledge of this malice on the part of Gordon towards the prosecutor, Stewart entered into a conspiracy with him to kill Lilly, and this letter was written afterwards by Gordon to Lilly to bring on the difficulty, or in furtherance of the common design, then 'we should not be prepared to hold that it would be incompetent. ’The rule is, that every person entering into a common design, already formed, is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design. — 3 Greenl. Ev., §93, and cases there cited'. This rule, which is generally applicable to the offence of conspiracy, is grounded upon the reason, that by the act of conspiring together, the conspirators have jointly assumed to themselves as a body the attributes of individuality, so far as regards the prosecution of the common design, thus making the act of each a part of the res gestae and the act of all.

But it is very clear, that the acts or declarations of neither party, which occurred before any conspiracy was formed, fall within the principle of admissibility.—3 Greenl. Ev., § 94; *482 Russ, on Crimes (ed. 1853) 696-8 ; 1 Phil.Ev. (9th ed.) 201; 1 East’s P. C., ch. 2, § 37, p. 96; 2 Stark. Ev. 326; Regina v. Murphy, 8 C. & P. 297; Regina v. Shellard, 9 ib. 277.

The view which we entertain upon this point shows that the court erred in admitting the proof of the letter written by G-ordon to Lilly; and as the other questions which are raised will not likely recur upon another trial, we deem it unnecessary to decide them.

Let the judgment be reversed, and the cause remanded.