dissenting:
I can not concur with a majority of the court in reversing the judgment. This was an indictment against John Lamb, in the Criminal Court of Cook county, for the murder of Albert Pace, a police officer of Chicago. On a trial the jury found the defendant guilty as charged in the indictment, and by their verdict directed the infliction of the death penalty. The court overruled a motion for a new trial and rendered judgment upon the verdict, to reverse which the defendant prayed for and obtained a writ of error, with au order that the writ be made a supersedeas. On the trial the court, on motion of the people, gave the following instructions to the jury:
“ 9. The court instructs the jury, as a matter of law, that if several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in consideration of law, the act of all. And he who advises or encourages another to do an illegal act is responsible for all the natural or probable consequences that may arise from its perpetration.
“ 10. The court instructs the jury, as a matter of law, that if two or more persons conspire together to commit a criminal offence, all. of them having the same object in view, and in the pursuit of that common object one of them does an act which is the cause of death under such circumstances that it amounts to murder in him, it is murder in the other or others also.”,
The court refused to give, on motion of defendant, instructions Nos. 6 and 8, as follows:
“6. If the jury believe, from the evidence, that the homicide charged in the indictment was committed by one of the several burglars while engaged in secreting or disposing of property which said burglars had previously stolen, and that the killing was done to prevent the discovery and seizure of said property by the person killed, then, unless the jury believe from the evidence, beyond all reasonable doubt, that the defendant was present at the homicide, or sufficiently near to render aid and assistance to the perpetrator, and actually did aid, abet or encourage the person who committed the homicide; or unless the jury shall find that the defendant, before the homicide, counseled or advised the persons in charge of the said goods to oppose and resist whosoever should attempt to seize said goods, or interrupt them in the secreting or disposing of said goods, and that the killing of the deceased occurred in the course of such resistance as the defendant had so counseled and advised, then they ought to acquit the defendant.”
“ 8. If the jury believe, from the evidence, that the defendant and others were 'jointly engaged in the perpetration of the burglary and robbery of the store of Jaffray & Co. on the evening of the 4th of October, 1878, and after the robbery was completed the stolen property was loaded into a wagon, and two or more of the persons other than the defendant engaged in the robbery were placed in charge of the wagon and goods, to take the goods up State street, to the store of Friedberg, for sale or concealment, and the other persons engaged in the burglary then dispersed; and if the jury further find that the two persons so placed in charge of the wagon and goods proceeded to the said store of Friedberg with the wagon and goods, and while unloading the goods at said store were approached by a policeman, and thereupon one of the persons so in charge of the wagon and goods, upon being so approached by a policeman, fired upon and killed said policeman to prevent interruption in the disposition of said stolen goods, or to prevent arrest, then the defendant is not guilty in law of the said homicide, unless the jury find from the evidence that it was the understanding and intention of the defendant that the persons in charge of said goods should resist all interruption by force, and take life if necessary to render such resistance effectual.”
The court also refused defendant’s instruction Ho. 7, as asked, which was as follows:
“7. The jury are instructed that where one man goes out with intent to commit a felony, and in the pursuit of that unlawful purpose death ensues, it is murder; yet if several go out with a common intent to commit a felony, and death ensues by the act of one of the party, the rest will not necessarily be guilty of murder.”
But added thereto the following, and gave it to the jury, as modified:
“ But if the death occurs in prosecution of the common purpose, it would, if it was murder upon the part of the person causing the death, be murder upon the part of all the persons intending to commit the felony, and acting together in the common purpose, even though they took no part in the killing, nor assented to any arrangement having for its object the death of the deceased.”
The decision of the court in giving the two instructions for the People, refusing the two asked by the defendant, and in modifying defendant’s instruction Ho. 7, is relied upon as error, for which the judgment of the Criminal Court should be reversed.
It will be observed that the question presented by the instructions is one not entirely new in this court. As early as 1854, in Brennan v. The People, 15 Ill. 511, which was an indictment for murder, it was held, where several persons conspire to commit a felony, and death happens in the prosecution of the common object, all are alike guilty of the homicide; that the act of one is the act of all, although some are not present when the crime is committed. It was there said: “The prisoners maybe guilty of murder, although they neither took part in the killing nor assented to any arrangement having for its object the death of Story. It is sufficient that they combined with those .committing the deed to do an unlawful act, such as to beat or rob Story, and that he was killed in the attempt to execute the common purpose. If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in consideration of law, the act of all.”
The doctrine of the Brennan case was recognized with approval in Hanna v. The People, 86 Ill. 243, where, in passing upon one of the instructions given for the People, it was said: “The instruction given in behalf of the People is not subject to the criticism made upon it. It states correctly, that.if defendant and those indicted with him had a common design to do an unlawful act, then, in contemplation of law, whatever act one of them did in furtherance of the original design is the act of all, and all are equally guilty of whatever crime was committed.” This was but a restatement of the law on this subject as declared by this court in Brennan v. The People.
In so far, then, as this court is concerned, the principle, at least, declared in the instructions seems to be settled, and while perhaps some decisions of other courts may be found in conflict with the rule as announced in this court, we are satisfied the rule here adopted is in harmony with the law as declared in the text books and the decisions of the ablest courts of the country.
In Wharton’s American Criminal Law, vol. 2, sec. 998, in discussing this question the author says: “If a number of persons conspire together to do an unlawful act, and death happens in the prosecution of the design, it is murder in all. If the unlawful act was a trespass, the murder, to affect all, must be done in the prosecution of the design. If the unlawful act be a felony, it will be murder in all, although the death happen collaterally or besides the principal design.”
In Russell on Crimes, vol. 1, p. 35, it js said: “Where the principal goes beyond the term of the solicitation, yet, if in the extent the felony committed was a probable consequence of what was ordered or advised, the person giving such orders dr advice will be an accessory to the felony. As, if A advised B to rob C, and in robbing him B kills him, either upon resistance made; or to conceal the fact, or upon any other motive operating at the time of the robbery; or if A solicit B to burn the house of C, and B does it accordingly, and the flames take hold of the house of D, that likewise is burnt. In these cases A is accessory to B, both in the murder of C, and in the burning of the house of D.”
In Chitty’s Criminal Laxv, page 262, it is said: “If A command B to rob C, and he kill in the attempt; or to burn one house, and the fire destroys more, A will be accessory to the subsequent felonies.”
To the same effect are the following authorities: 1 East P. C. 255 ; 1 Hale P. C. ch. 34, 433, 434; Stepp v. State, 11 Ind. 62.
Had it appeared that the killing of Race was not done in furtherance of or in prosecution of the original design to rob the store, or secrete the stolen goods, or was not a necessary or probable consequence likely to result from the conspiracy to rob and secrete the stolen goods, there might be more force in the position of counsel for defendant.
As was said in Commonwealth v. Campbell, 7 Allen, 541, “the rule of criminal responsibility for the acts of others is subject to the reasonable limitation, that the particular act of one of a party, for which his associates and confederates are to be held liable, must be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together.”
But the evidence, when fairly considered, seems to establish beyond a doubt that the killing was a consequence likely to flow from the conspiracy, which was anticipated by the conspirators, and for which they prepared themselves before they attempted to rob the store. Previous to the robbery a navy revolver was obtained at Friedberg’s. This Avas loaded, and, on the night of the burglary, given to the defendant. Three of the other parties were armed, and Freeman, who Avas stationed on the outside with Lamb to Avatch while the others entered the store, in his evidence, says that Lamb sent him into the store to see Avhy those engaged in getting the goods were so slow, and when he ascended the stairs Avhere they were, as he Avas not recognized, two revolvers Avere pointed at him. If those parties engaged in the burglary did not intend to shoot if molested, why were they armed Avith revolvers? For what purpose was the navy revolver given to the defendant, and Avhy was it that Avhen Freeman went into the store, and AAas not recognized, tAAo revolvers were instantly pointed at him ? There can be but one ansAver to these inquiries, and that is, that those engaged in the robbery intended, in case they were molested Avhile robbing the store or delivering the goods at Friedberg’s, to kill, if necessaiy, any person who might interfere in any manner Avith them. I think it is evident that the killing of Race was done in furtherance of the common design for which the parties combined together.
Nor do I entertain a doubt in regard to the law that should govern a case like the one under consideration. It is well settled that if íavo or more persons conspire to commit a larceny or a burglary, and in the commission of the common design, or in the attempt to secrete the stolen goods, an officer of the larv or other person who may attempt the arrest of the offenders is murdered by one of the conspirators, all who enter into and participate in the common object for Avhich they combined together will be guilty of murder, although some of them may not be actually present when the murder was committed.
In addition to the authorities already cited sustaining this view, I will cite the following: 1 Bishop on Criminal Law, (5th ed.) sec. 636; Miller v. The State, 25 Wis. 384; The State of Iowa v. Shelly, 8 Clark, 477; Moody v. State, 6 Cold. 299.
I regard the decision of the court on the instructions to be o 6 in harmony with the well settled law of the country, and so far as the instructions are concerned no error appears in the record.
It is also urged that the court erred in refusing to require the State’s attorney to call all the witnesses whose names' appeared on the back of the indictment. It has never been the practice in this State, so far as I am advised, to require the State’s attorney to call all the witnesses whose names may appear on the indictment, nor do we believe a rule of that character would be productive of any good results in the trial of criminal cases.
In the case of Hurd v. The People, 25 Mich. 416, cited by defendant’s counsel, it was held that the prosecution is bound to put in evidence the whole res gestee, but we do not understand that the decision goes so far as to require every witness whose name appears on the indictment to be called and sworn, or even every witness who may have witnessed the transaction, as it is expressly said: • “ Where the number present has been so great, the production of a part of them might be dispensed with, after so many had been sworn as to lead to the inference that the rest would be merely cumulative, and where there is no ground to suspect an intent to conceal a part of the transaction.” The English cases, R. v. Holden, 8 C. & P. 606, R. v. Chapman, id. 559, and R. v. Strenner, 1 C. & K. 650, do not, in our judgment, sustain the position announced, nor do they establish any definite rule on the subject. ■
On the other hand, in Rex v. Simmons, 1 Carr. & Payne, 84, it was held that the prosecution was not bound to call all the witnesses whose names appeared in the indictment.
And in Rex v. Boddle, 6 Carr. & Payne, 186, it was held to be in the discretion of the judge whether he would require the prosecution to call a witness whose name was on the indictment, in order that he might be examined by the defence.
The same principle was announced in Regina v. Woodhead, 2 C. & K. 520; Regina v. Carrody, 1 F. & F. 79.
It does not appear that the prosecution attempted to conceal any fact which had a bearing on the case from the jury, and the fact that the State’s attorney failed to call all the witnesses who were present when the shooting was done, or whose names were on the indictment, did not prejudice the lights of. the defendant, as it was his undoubted right to call and examine the witnesses the State’s attorney refused to call, and such others as he saw proper.
It is also urged that the testimony is not sufficient to establish the guilt of John Lamb, the defendant. The sufficiency of the evidence was a question purely for the jury, and while this court has the power to interfere, that power should not be exercised unless it is apparent that injustice has been done.
In Peri v. The People, which was an indictment for murder, in passing upon the question whether the evidence supported the verdict, it was said that the appellate court is reluctant to reverse because a verdict is not supported by the evidence, unless it seems to be clearly wrong. Other cases might be cited to the same effect if authority was needed, but the rule is so well established in this court that it seems useless to cite authority in its support. The jury, under the law, are the sole judges of the credibility of the witnesses and of the weight to be given to the evidence of each witness who testifies in the case, and, in a criminal case like this they are the judges of the law. Under such circumstances, where there has been no misconduct of the jurors, and no error of law appears on the trial, and the jury have not been actuated by passion, prejudice or corruption, it would seem like invading the province of the jury should the court interfere on the ground alone, in the opinion of the court, that the evidence was insufficient to sustain the verdict. If the witnesses who testified on behalf of the people on the trial of the cause were woithy of credit, and their evidence was reliable, the evidence shows that the defendant, John Lamb, and George Freeman, Philo Durphey, Charles Dennis, James Griffin and James Driscol, entered into a conspiracy to rob the store of Jaffray & Co., in Chicago, and deliver the stolen goods to one Lesser •Friedberg, a pawnbroker at 474 State street; that the store was entered on the night of October 4, 1878, the goods taken, and while being delivered at Friedberg’s place by two of the burglars, Albert Pace, a policeman of the city, was shot and murdered by one of the conspirators, while in the discharge of his duty as a police officer of the city.
On behalf of the defendant it is contended, first, that there was no credible and sufficient evidence to implicate him in the burglary of Jaffray’s store, or in the removal and disposition of the stolen goods; second, that the evidence fails to show that defendant, Lamb, fired the fatal shot by which deceased was slain, or was present aiding and abetting the homicide.
George Freeman was introduced as a witness in behalf of the people, and ft is conceded that his evidence, if entitled to credit, was sufficient to convict Lamb of the burglary, and that it also showed that Lamb followed the wagon containing •the stolen goods to the pawnbroker’s shop, and was present when the murder was committed, and may have fired the fatal shot. It is true, Freeman was an accomplice, and while his • connection with the crime was a fact for the consideration of the jury in determining what weight should be given to his evidence, he was, nevertheless, a competent witness for the people, and it was the province of the jury, upon weighing the probability of his testimony, to convict upon his evi- •. deuce alone, if they thought him worthy of belief. Gray v. The People, 26 Ill. 344; Earll v. The People, 73 id. 334.
In reference to some of the important facts, however, Freeman was corroborated by other witnesses. He testified that he met Lamb and the other burglars on the evening of the 3d on the Uorth side, where they commenced making the arrangement for the burglary, which was consummated during the next day and evening, the last meeting being at Ott’s saloon, late in the afternoon.
Upon this branch of the case Schaack and Whalen, two policemen, testified that they met Lamb in company with the other burglars, or some of them, at the north side of Kinzie street bridge, on the evening of October 3d; and Peter Ott testified that on the afternoon of October 4th, about half-past five, Lamb, in company with the other burglars, came in his saloon on the Uorth side, at the corner of Kinzie and Market ' streets; they all drank together, talked and went outside; again came in and spoke low to each other near the window.
The testimony of this last witness fully corroborates Freeman as to the meeting of the burglars a short time before the store was entered and the burglary committed.
Again, William Harmon, another witness for the people, testified that he saw the defendant on the wagon on the night of October 4th, near Friedberg’ pawn shop; he did not see the man who fired the shot, but saw the flash and heard the shot, and after the shot saw a man jump off the wagon and run across the street. This witness may have been mistaken, owing to the darkness of the night, it is true, but he gave it as his opinion that defendant was one of the men he saw on the wagon when the shot was fired, and his evidence at least tends to corroborate Freeman.
Freeman, it will be remembered, testified that when the officer came up he ran across the street, leaving Dennis in the wagon and Lamb and Durphey near by; that after the shot another person ran from the wagon across the street. In this he is substantially corroborated by John Hemmelman, who testified that he was within seventy-five feet of Race when he was shot; that one person ran across the street before the shooting was done, and another immediately thereafter. He also saw a man near the wagon, when the shot was fired, whom he described, and the man he describes was doubtless Lamb.
I place no reliance on the evidence of Josephine Chapman, who testified that she saw the defendant fire the shot that killed Eace, because she was so completely impeached that her evidence was not entitled to credit.
Aside from her evidence, after giving full force and effect to the testimony of the witnesses for defendant tending to prove that he did not follow the stolen goods to the pawnbroker’s shop, and also the testimony tending to prove an alibi at the hour the murder was committed, there was still proof sufficient before the jury to authorize the verdict if the evidence of the people Avas entitled to credit, which of course was a question purely for the jury.
Had the record disclosed any misconduct of the jurors on the trial, or that the court had erred in its rulings on questions of law, I would not hesitate in the least to reverse the judgment and remand for another trial, but such is not the case. On the other hand, it is manifest, from a careful inspection of the Avhole record, that the defendant has had a fair and impartial trial before a jury of twelve impartial men of his OAvn selection. He has been found guilty of a high crime, and in obedience to the mandates of the laAV, he ought, in my judgment, to suffer the penalty.
Walker and Sheldon, JJ.: We concur with this dissenting opinion.