I dissent. Among the instructions requested by the defendant and refused by the court there were two that correctly stated the law applicable to the case made by the evidence, and for which nothing equivalent was presented as a substitute in the charge of the court. They were the following: "Where persons are unlawfully together, and have a concurrent understanding in the actual perpetration of some crime, if one of the defendants of his sole volition, and not in pursuance of the main purpose, and in no way connected with what was actually contemplated, commits another crime, the other is in no way liable." "One who has advised or encouraged in a misdemeanor is not responsible for a murder committed by his co-conspirator, not in furtherance, but independent, of the common design." (Instructions Nos. 25 and 32.)
The verdict of the jury acquits the defendant of participation in the deliberate plot to murder Rice, and must have been founded upon the unsatisfactory state of the evidence tending to connect him with the purposes of Buckley and Moran. There was evidence tending to show that his object in accompanying them to the scene of the murder was merely to witness or perhaps to promote a "scrap"; in other words, to commit a misdemeanor. In this state of the case it was highly material to the defense that the instructions above quoted should have been given.
It was also an error, in my opinion, to allow the people after the defendant had closed his case to introduce evidence as to his connection with the strikers. This evidence was intended to show a motive for the homicide, and for that purpose was a part of the opening case. Having omitted to make that a part of the case in the opening, the people could not bring it in by way of rebuttal. It rebutted nothing offered by the defendant, for the utmost effect of the evidence offered by him was to leave the case where the people had left it — that is to say, without any evidence of any particular motive on the part of the defendant for seeking the life of the deceased.
Rehearing denied. *Page 402