— The indictment contains two counts ; the first charging that the defendants, “conspired together to unlawfully take one thousand dollars in money, the property of Julius G. Hudspeth, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same.” The second count charged that the ■defendants “unlawfully conspired together to unlawfully and with malice aforethought killed Julius G. Hudspeth.” On the trial, the State voluntarily elected to prosecute only for the offense charged in the first count, thereby, for all the purposes of the trial, eliminating the second count as effectually as if it had not formed part •of the indictment; and it is the sufficiency of the first *74count alone, which is now open for consideration. The offense, the commission of which is averred to have been ■the pui’pose of the conspiracy, is described in the count in the words of an indictment for robbery as prescribed by the Code, (Cr. Code, 276,Form 76) ; and in other respects, the count is in close analogy to the form prescribed for a conspiracy to murder. — Cr. Code, p. 269, Form 29. The statute prescribing forms of indictment, declares that the forms are sufficient in all cases to which they are applicable, and that in other cases analagous forms may be used. — Cr. Code, § 4899. The demurrers to the count were not well taken, and were properly overruled. — 3 Brick. Dig. 279-80, §§ 447-49.
It is a very general rule, applicable alike in civil and criminal cases that if a witness has given testimony in .the course of a judicial proceeding between the parties litigant, before a competent tribunal, subsequently dies; or if not dead becomes insane ; or after diligent search is not to be found within the jurisdiction of the court; or if that which is equivalent be shown, that he has left the State permanently, or for such an indefinite time that his return is contingent and uncertain, it is admis.sible to prove the substance of the testimony he gave formerly. — 1 Whart. Ev., §§ 377-80 ; 1 Green. Ev., §§ 163-66 ; 1 Brick. Dig. 878, §§ 1064-72; 3 Brick. Dig.4tl, §§ 523-33 ; Lowe v. State, 86 Ala. 47 ; South v. State, Ib. 617; Perry v. State, 87 Ala. 30 ; Pruitt v. State, 92 Ala. 41; Lucas v. State, 96 Ala. 51. The rule is founded upon a principle of necessity, rather than upon any ideas of mere convenience. Parties should not lose the benefit of evidence, taken on a former trial when the same issues were involved, and there was full opportunity of examination and cross-examination, because events or contingencies have arisen which render the personal presence of the witness impossible, or if possible, his examination impracticable, or because the witness is without the jurisdiction of the court, and his personal presence can not be compelled. The rule is however exceptional, and it is essential to the admissibility of the evidence, that some one of the contingencies, which are deemed to create the-necessity, be satisfactorily shown. In the present case, the 'fact which was supposed to authorize the introduction of the evidence given by the witness on the *75preliminary examination before the justice of the peace,, was his absence from the State at the time of the trial. The evidence was without conflict, that the -witness was a minor, and his home was with his father in the county in -which the trial -was had, and that when he left home but a short time before the trial for the State of Florida, it ivas avowedly for a mere temporary purpose, and with the intent of returning to the term of the court at which the trial was had. The opposing evidence is that of a witness, who two days before the trial saw the witness in Florida, and he declared that he had a job of work and intended to remain, and was not coming to court. The reasonable hypothesis the evidence supports, is not that the witness had permanently abandoned, or intended a permanent abandonment of his home in this State ; that his absence was merely temporary ; though’the time of returning is not shown affirmatively, it is not shown to have been uncertain and contingent. There was no duty resting upon the witness to return to that term of the court, or to be present at- the trial of the case. He had not been summoned, nor ivas he under bond for appearance, so far as is shown ; nor had the State any reason to expect his appearance or presence. We are not of opinion, that an event or contingency was shown which authorized the introduction of the evidence the witness had given on the preliminary examination before the justice of the j>eace. We deem it proper to say, that it was not an objection to the admissibility of the evidence, that the justice of the peace liad not reduced to -writing the examination of the witness, as is required by the statute. The neglect of the j ustice to perform this duty, can not prejudice the parties, nor does it lessen or add to the tests upon which the admissibility of the testimony depends, nor was the evidence inadmissible because the magistrate could not, and did not assume to-repeat’the precise words of the witness ; all that was essential, was, that he should remember and state the substance of what the witness had testified to formerly; the substance of the examination by the State, and of the cross-examination by the defendants. — Gildersleeve v. Caraway, 10 Ala. 260 ; Davis v. State, 17 Ala. 354. We may remark, that if on a succeeding trial, the witness should be absent, and the introduction of his evidence on. the preliminary examination before the justice is deemed *76materia], its admissibility will depend on the state of facts then existing.
The instruction given by the court touching a reasonable doubt which requires an acquittal of a criminal charge, is clear and precise, and in accordance with all authority. Though an exception was reserved to it, in the argument of counsel here its correctness is not questioned.
Instructions requested must be clear, precise statements of the law applicable to the evidence; must be free from involvement or obscurity, of all tendency to mislead or confuse the jury, must not be invasive of the province of the jury, or argumentative. If subject to any one of these objections, there is no revisable error in refusing them.
The first instruction requested by the defendants, not only gives undue prominence to the evidence of the witnesses who were named in it, but was invasive of the province of the jury to consider the testimony of these witnesses in connection with all the evidence which had been introduced touching the facts to which they testified. The precise meaning or purpose of the second instruction, is not clear. Time and place are material inquiries on every criminal trial. The burden rests on the State to prove that the offense charged was committed within the county in which the ventee is laid, and within a time to avoid the bar of the statute of limitations. The burden is not increased whatever may be the nature or character of the defense. It is not of consequence true, as a legal proposition, as this instruction asserts, or as it would probably have been by the jury construed to assert, that time and place became a material inquiry only when an alibi was interposed as a defense .
The third instruction is founded in a misconception of the offense charged, and is not in any of its postulates of fact well founded. A conspiracy is in and of itself a distinct, substantive offense ; complete when the corrupt agreement is entered into ; the agreement is the gist of the offense. It is not necessary that any act should be done in pursuance of the agreement; nor is the offense purged, because subsequent events may render the consummation of the agreement impossible, or because the conspirators are entrapped in an attempt at its consummation.
*77The fourth instruction assumes as matter of fact, that which it was the province of the jury to ascertain and determine ; that, to employ its own words, the recollection of the witnesses as to the testimony given by Dykes on the preliminary examination before the justice, was “indistinct as to a great deal of his testimony.” Besides, in form and expression the instruction ivas a mere argument.
The fifth, eighth, and ninth instructions maybeconsideredjtogther,;and each are subject to kindred objections. The indictment charges the offense to have been committed in Henry county, and includes the charge that the time of its commission was within twelve months prior to its finding. These were the facts, the State was under the burden of proving; there was no burden resting upon it, to prove that the conspiracy was formed at the time or place stated in the fifth, and eighth instructions. These instructions confound the allegations of the indictment with the evidence which the State introduced. They are -wanting in clearness and precision, and were calculated to mislead or confuse the jury. The ninth affirms that the State had elected to prosecute on the testimony of a particular witness; and of such election the record furnishes no evidence, unless it be inferred from the tendencies of the evidence the State introduced.
The sixth instruction is subject to the objection that it gives undue prominence to the testimony of particular witnesses.
The offense charged against the defendants was the conspiracy, not any act done or attempted in its consummation. Of the fact of the conspiracy, of the corrupt agreement, .the evidence must have satisfied the jury beyond a reasonable doubt; and if the jury could reconcile all the criminating evidence on a reasonable hypothesis consistent with the innocence of the defendants, it was a duty to adopt that hypothesis. This is far from- being the proposition asserted in the seventh instruction, -which mingles the evidence touching the going to Hudspeth’s house after the conspiracy was formed, and the evidence of the conspiracy, and then in the alternative, requires an acquittal, if the jury could account for the evidence of either, on a reasonable hypothesis consistent with the innocence of the defendants. It may be, the jury could account for the fact that the *78defendants went to Hudspeth’s house, on some reasonable hypothesis consistent with their innocence, aiid yet unable to reconcile all the criminating evidence touching the conspiracy, on any reasonable hypothesis consistent with innocence.- Yet, framed as the instruction is, in that event, the jury would have been under the duty of acquittal. The only importance of the fact that the defendants went to Hudspeth’s house, lies in its tendency to corroborate the evidence of the conspiracy. There is no aspect in which the instruction can be considered as correct, and it was properly refused.
It is insisted that the tenth instruction ought to have' been given, because there is an absence of evidence to support the averment of the indictment, that the object or purpose of the conspiracy was to rob Hudspeth of one thousand dollars. An indictment for a conspiracy to do an act which is a well known felony or misdemeanor at common law is sufficient if it describes or avers in general terms the felony or misdeanvanor intended to be committed. Th s nature of the offense by such averment or description is cleanly indicated, and all beyond is mere matter of evidence, or surplusage. — 1 Bish. Or. Procedure, § 516 ; 4 Amor. &Eng. Eucyc., 623 ; 3 Greenl. Ev., § 395 ; Com. v. Eastman, 1 Cushing, 189; s. c. 48 Am. Dec. 596. It ivas immaterial whether tlie purpose of the conspiracy was to rob Hudspeth of one dollar or of one thousand dollars. The degree of the guilt of the accused ivas not lessened or increased because of the insignificance or the magnitude of the value of that which it iv is intended to acquire by the robbery; and if this were an indictment for robbery, it would not be necessary to prove the precise sum averred to have been taken from the person of the party robbed. — 3 Greenl. Ev., § 224 ; 1 Bish. Or. Pr., § 579. The averment of the indictment in the particular we are considering, belongs to that class of averments winch are not descriptive of the fact or character of the offense, and are not required to be proven with any degree of precision. — 1 Greenl. Ev, § 65 ; 1 Bish. Or. Procedure, § 579.
"We. are without a statute declaring a conspiarcy formed in this State to commit a felony or a misdemeanor in a sister State, an indictable offense, as we are without a statutory declaration of the elements or constituents of a criminal conspiracy. The Criminal Code declares the *79punishment to be inflicted for the offense of a conspiracy to commit a felony or a misdemeanor, and, it may be, refers exclusively to a conspiracy in this State to commit within the State a felony or misdemeanor as the Code defines these offenses. But the doctrine has long been established, in civil and criminal cases, that the common law so far as adapted to our condition, consistent with our institutions, and unaffected by legislation, prevails here. — 1 Brick. Dig. 349, §§ 1-12. In State v. Pierson, 12 Ala. 149, it -was held, that the common law of this State on the subject of homicide, is derived from and the same as the common law of England. The criminating element and constituent of an indictable conspiracy, is the vicious, unlawful combination, the corrupt and corrupting agreement, and wherever the common law prevails, if the combination is formed, and the agreement entered into, to commit a known felony, ■malum- in se, the offense is complete. There needs no overt act — no effort at consummation ; the combination and agreement are of the essence, the gist of the offense ; and as a distinct substantive offense it is then committed. The place at -which it is intended to commit the felony is not material; it is the law of the place where the. conspiracy is formed which is broken. A conspiracy at common law is a misdemeanor, and the Code provides the punishment which is to be inflicted on conviction of a misdemeanor at common law, the punishment of which is not other-wise particularly specified. It is apparent from our legislation, and its history, that the legislative intent is to preserve, not to impair or abrogate the common law, so far as it may relate to civil rights, or to crimes, is adapted to our condition and not inconsistant with our institutions, except in so far as it is superseded by express or repugnant legislation. Considering, and expressing an opinion only on the precise question the record presents, we have no hesitancy in declaring that it is an indictable common law misdemeanor, to enter into a conspiracy in this State to commit a known common law felony, malum inse', in a sister State. — 1 Russ. Crimes, 967; 1 Whart. Cr. Law, (9th ed.), § 287; 1 Bish. Cr. Law, '(7th ed.), § 111 ; State v. Chapin, 17 Ark. 561 ; s. c. 65 Am. Dec. 452; Ex parte Rodgers, 10 Texas Ct. App., 655 ; s. c. 38 Am. Rep. 654; Johns v. State, 19 Ind. 421.
*80For the error pointed out the judgment must be reversed and the cause remanded. The defendants will remain in custody until discharged by due. course of law.