RICE, J.
(After stating the evidence above recited.) Frank is a slave ; Messrs. Bruton and Woodruff are white men. Just after the fight, Mr. Bruton met Frank. What Frank said to him, was begun by his inquiring, “how it happened.” The conversation continued until they got to the house of Mrs. Woodruff, and Mr. Bruton went in, leaving the negroes in the yard. The evidence does not show that the conversation had ended when Mr. Bruton went into the house. Upon his going into the house, Mr. Woodruff immediately came out with Mm into the yard where the negroes were, when Frank, in reply to the inquiry of Mr. Woodruff, made the full and fair statement offered in evidence by the prisoners and rejected by the court. Although the evidence shows that Mr. Bruton “ did not hear” the statement made by Frank to Mr. Woodruff, yet it does not show that Mr. Bruton left Mr. Woodruff, or the yard, before said statement was made, nor that Mr. Bruton did not' remain in the yard with Mr. Woodruff, nor that he was not present, and in full view of Frank, whilst Frank was making the statement to Mr. Woodruff, The statements made by Frank to Mr. *43Bruton and-Mr. Woodruff, related to the same subject; and the statement to the one followed the statement to the other, without any other pause or interruption than was produced by Mr. Bruton’s going into the house and bringing, out Mr. Woodruff, and in as quick and immediate succession as the relation of white men to a slave and their dominion over him would allow under such circumstances as are here disclosed by Messrs. Bruton and Woodruff.
We do not question the honesty of Mr. Bruton, in the expression of his opinion, that “ Frank evidently tried to conceal the fact that any serious hurt had been done by any one in the fight.” But conceding his honesty, he may be mistaken in this opinion. If he is mistaken, his mistake is prejudicial to Frank. His testimony made it a material question, whether, in fact, Frank had this intent to conceal, which Mr. Bruton honestly thinks he had. This question was for the determination of the jury. It was the right of Frank to lay before them every circumstance, connected with his statement to Mr. Bruton, which could aid them in coming to a conclusion upon this question of intent. He should not have been confined to what appeared in Mr. Bruton’s testimony, but should have been permitted to submit to the jury the testimony which was offered by the prisoners and rejected by the court, as the same is hereinabove set forth. In rejecting the testimony thus offered, the court below erred. — The State v. Curtis, 12 Iredell’s Rep. 270 ; United States v. Craig, 4 Wash. C. C. Rep. 730 ; Barthelemy v. The People, 2 Hill (N. Y.) R. 248 ; Cornelius v. The State, 7 English’s Rep. 783 ; 1 Starkie on Ev. 46 to 48 ; 2 Waterman’s Arch. Cr. Pl. 212-13.
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. If, however, an offence is committed by one or more of them, from causes having no connection with the common object, the responsibility for such offence attaches exclusively to its actual perpetrators. In such cases, it is a question for the jury, whether the act done was in prosecution of the purpose for which the party had assembled or confederated, or was independent of it, and without any previous *44concert. — 1 East’s Crown Law, 255 to 260, §§ 31 to 85 ; 2 Waterman’s Arch. Or. PL 211-1 to 211-4 ; Thompson v. The State, 25 Ala. Rep. 41.
This question was excluded from the consideration of the jury, by the last sentence of the fourth charge given, by way of qualification. In thus excluding this question from the consideration of the jury, the court below clearly erred as to Trussvan and Jerry.
This charge is palpably erroneous as to Trussvan, for another reason. It makes him guilty of the murder of La Fayette, without any agreement or preconcert with Jerry or Frank, and merely because he knocked La Fayette down with a pine knot while retreating from Jerry’s assault, although this knocking down did not produce death, and although Frank killed La Fayette by stabbing him after he was knocked down. Even where death ensues in consequence of an unlawful act not felonious, though the law may not consider the man innocent, it endeavors to measure the nature and degree of punishment by the degree of real guilt. — 2 Waterman’s Arch. Or. PI. 211-1.
We have already pointed out errors which compel us to reverse the judgment of the court below, and to remand the cause; and we shall place the reversal upon the grounds above set forth.’ But we wish it distinctly understood, that we do not commit ourselves upon the other questions presented by this record. They may not arise on another trial, and we decline their consideration at this time.
Judgment reversed, and cause remanded.