This is an appeal from the judgment of the third district court, sitting in Doña Ana county.
The defendant, who is the appellant, was indicted by the grand jury of Grant county, at the July, 1879, term, as an accessory before the fact to the murder of Henry F. Dwenger, William Young and W. H. Dwenger being indicted as principals.
The defendant having applied for and taken a change of venue to the county of Doña Ana, her trial was had at the March, 1880, term, in that county, the principals having been first tried and convicted.
The court held that, under our territorial law, the offense charged was murder in the fifth degree, and the jury brought in a verdict of guilty of murder in that degree, and assessed the punishment at ten years’ imprisonment. Before sentence, the prisoner’s counsel moved for a new trial on various grounds, which motion was denied by the judge presiding. Thereupon the defendant appealed to this court.
The matters for our consideration are, fortunately, narrowed down to a small number. It is conceded by the defendant’s counsel that the action of the court below in treating a case of this nature as murder in the fifth degree under our statute was correct; and that, in the charge to the- jury, the two propositions for that body to pass upon in determining the facts were properly laid down. On the motion for a new trial five specific causes were assigned, besides the formal ones. These five consisting of alleged errors in the admission of testimony, and in refusals to give instructions to the jury which were requested ; but in the brief and argument of counsel for the defendant, they have confined themselves to the refusal of the court below to give to the jury the sixth, seventh and eighth of the instructions requested by them at the trial; and these substantially include the matters of evidence stated in the motion for a new trial, and are all that we have to consider. These are as follows :
Sixth. “ The jury is further instructed to disregard all the evidence in this case purporting to be the admissions or confessions of the defendant, Dora Dwenger, made by her after such killing, relating or pertaining to any act or thing done by her subsequent to the homicide of the said Henry F. Dwenger, with the view of concealing such homicide, or for the purpose of enabling the perpetrators thereof to elude punishment.”
Seventh. “ And the jury are further instructed that all confessions and admissions made by the defendant under the cir■cumstances and in the manner detailed by the witnesses for the prosecution tending to prove her concealment of such homicide, ought not to be considered by the jury as proving or tending to prove that the defendant incited, procured, hired, counselled, moved, aided or commanded the said Wm. Young and William H. Dwenger, or either one of them, to kill the said Henry F. Dwenger, as charged in this indictment.” .
Eighth. “The jury are further instructed that the confessions or declarations made by William Young, or by the said Wm. H. Dwenger, as stated by witnesses for the prosecution, are not' legal or competent evidence in this case against the defendant, and ought not to be considered by the jury in their deliberations as to the guilt or innocence of the defendant, unless the jury shall further believe from the evidence that the defendant was present when such confessions or declarations were made and assented thereto.”
It was argued by counsel for the defendant that the sixth and seventh instructions should have been given, because the admissions of the defendant were made two months after the commission of the murder, and also because they related to events’ occurring after that commission. The time when the admission is made, however, can be of no importance; if years after the crime in question, it would have just as much weight and be just as binding as evidence. The time of the occurrence of the acts admitted is of more consequence, and if remote from the date of murder would raise a serious question. But in this case they occurred within a very short time after the murder, and as to one act of special importanee, it is impossible to tell from the evidence whether it occurred before or after. This 3s the admission of the defendant testified to by the witness Hoffman, as follows:
“You need not blame the boys for robbing him of his clothes. I sent a sack along to bring the clothes home. She said in Germany there was a case of the kind where a man •was murdered and the body was identified by the clothing, and that was the reason why she sent the sack along to bring the clothes home; she did not state the time, whether before or after the killing.”
Sheriff Whitehall testified substantially to the same statements by the defendant, and adds, “ she said she had sent the sack for them; at the time she spoke 1 thought she had sent the sack up at the time he was killed,' but since then they have all told me that the clothing was brought in the next day.”
So at the farthest, this was an action of the defendant on the next day after the murder, and directly connected with the murdered man and his death, and as such it is admissible to be .considered by the jury in connection with the other evidence in coming to their conclusion.
Of a similar character is the evidence (in the form of admission by the defendant), as to the concealment of the coat in the quilt. While not conclusive in itself, it is yet so connected with the murder that it was proper to go before the jury as a circumstance for their consideration. We think, therefore, that there was no error in the admission of this testimony, nor in the refusal to give the sixth and seventh instructions as regarded by the defendant’s counsel.
This brings us to the eighth instruction. The defendant’s counsel concede that the judge rightly stated to the jury in his charge, the two questions which were involved in the case, and which they were to decide. The first of these was as follows:
“ That William H. Dwenger and William Young, or one of them, actually and intentionally killed Henry F. Dwenger, without justification or excuse, in the county of Grant, in November, 1878. That they or one of them, so killed Henry F. Dwenger by means of a fatal gunshot wound inflicted by them or one of -them.”
The same is briefly stated in the defendant’s brief in these words : “ The guilt of the principal felons or some one of them, must first be established by competent testimony.”
Whatever testimony then tended to prove such killing by the principals, was competent as evidence in the case ; such testimony indeed was absolutely essential, because if the jury did not find that • the first proposition was proven and that the principals were guilty, there would be no case against the defendant as accessory. The defendant’s counsel in their brief, endeavored to raise a distinction between the competency of this evidence as proof of the first proposition (as to the guilt of the principals), and as proof of the second proposition (as to the guilt of the defendant).
With regard to this, it may be said that any testimony which was proper as evidence regarding either branch of the case was of course admissible and could not have been excluded without error.
It may be that if the confessions and declarations of the principals had related wholly to the first proposition submitted to the jury, an instruction might have been framed limiting the application of that testimony to that proposition, and stating that it did not apply to the second proposition as to the action or complicity of the defendant before the commission of the crime as an accessory.
But firstly, the confessions and declarations to go beyond the subject of the first proposition, and secondly, the eighth requested instruction is not so framed. One of the statements of William H. Dwenger, testified to by the witness Watts, is as follows: “My mother and Mr. Young put up the job that we were to kill him; the plan was made at the breakfast table the morning we went out to kill him.” This clearly goes beyond the question of the guilt of the principals and directly affects that of the defendant.
Again, the eighth instruction is much too broad for the distinction drawn in the defendant’s brief, even if all the-confessions and declarations of the principals as testified to ■ had been strictly confined to their own guilt. The judge was asked to charge that those confessions and declarations “ are not legal or competent evidence in this case against the defendant, and ought not to be considered by the jury in their deliberations as to the guilt or innocence of the defendants. ITad he given this instruction, the jury would naturally have believed that they were precluded from giving to those confessions and declarations any consideration whatever in the case. The distinction is not clearly drawn, if drawn at all, between the two propositions submitted. To have given the instruction under the circumstances would not only have been error, because part of that testimony directly bore on the guilt of the accused, but because it would have misled the jury as to their right to consider these confessions and statements in any part of the case.
Without considering then the points as to “ conspiracy,” presented in the briefs, we think that the judge could not properly have given this eighth instruction and was right in declining to adopt it.
This covers all points raised by the defendant. The judgment of the court below is affirmed.
All concur.