delivered the opinion of the Court:
On the 28th of June, 1883, Freeman Price, impleaded with James Moran and Abel Lindohl, was tried and convicted in the Henry county circuit court for the crime of burglary, the jury fixing the term of his confinement in the penitentiary at three years. A motion for a new trial having been made and overruled, the defendant was sentenced by the court to the penitentiary for the period fixed by the verdict. The accused having brought the case here for review, asks a reversal of the conviction, mainly on the ground it is not supported by the evidence.
The transaction upon which the indictment is based occurred about half-past six o’clock in the evening of the 9th of March, 1883, at the dwelling house of John Milroy, on his farm near the county line between Knox and Henry counties. Milroy testifies that at about the time indicated some one rapped at his door and inquired the road to Woodhull, a village some two or three miles distant; that about half an hour afterwards there was another rap at the door, and his wife, Mrs. Milroy, asked who was there, to which the party rapping replied, “It is me;” that she then inquired if it was Pete, meaning one of the neighbors, and receiving an affirmative answer, she thereupon opened the door, when three men, with cloths tied over the lower part of their faces, walked in, and one or all of them presented pistols, and said, “Your money or your life; ” that witness stepped into the kitchen to get a spade to defend himself with, where he was followed by the largest one, who subsequently proved to be Moran; that upon witness drawing a spade on Moran, the latter presented a pistol, but did not shoot, nor did witness strike with the spade; that Mrs. Milroy remained in the first room with the other two; that upon their ordering her to get a light she did so, and handed it to one of them, and then passed through the pantry down into the cellar, and from thence out of doors, when she screamed for help; that the parties thereupon left, without having got any money or other valuables. The three persons who thus entered the house were the accused and his co-defendants, and it is conceded that the latter entered the house of Milroy, as stated, for the purpose of robbing him; but the plaintiff in error insists, and we think the evidence tends strongly to show the fact, that his object in accompanying them was to expose the contemplated crime, and bring the real perpetrators of it to justice, and whether this is so or not is really the only question in the case.
The gist of the offence charged is the intent with which the plaintiff in error entered Milroy’s house. The indictment charges it was with the intent to steal, and it is conceded the facts, as testified to by Milroy and his wife, are amply sufficient to make out a case against the accused, if there was no evidence explanatory of the criminating facts occurring at the house, and testified to by them, and it is therefore unnecessary to detail more particularly what transpired there. Judging the case by what occurred at Milroy’s house alone, the plaintiff in error does not stand in any better position than his co-defendants, who are confessedly guilty, and have not therefore joined in the writ of error. The defence set up by the former is in the nature of a plea of confession and avoidance. If he was really, as he claims, acting the part of a mere detective in accompanying the other two on their criminal mission, it is a matter of no significance that no difference could be seen in his conduct and the other two at Milroy’s house, for to have acted his part well that would reasonably be expected. To have merely stood by as though he were a silent spectator, would doubtless have excited the suspicions of his comrades,' imperiled his own safety, and possibly have defeated the very object he claims to have had in becoming one of the party. The turning point in the case then is, is the evidence tending to show plaintiff in error was acting in the affair merely as a detective, sufficiently strong to raise a clearly well founded doubt of his guüt ? If so, he ought not to be convicted.
The accused testifies the first intimation he had of an intention to rob Milroy he obtained from Moran, who came to him and asked him to help rob an old man near Woodhull; that witness said to him first, “that is not my business,” but afterwards said, “I will see about it;” that Moran came to him again, about four months ago, and asked him to go, when he said, as before, “I will see about it. ” The witness was then asked whether or not he advised with Mr. Byers in reference to going with Moran. This and other questions of similar import were propounded to the witness, all of which, on objection by the People, were held improper, and the witness was not permitted to answer them. The evidence shows that Byers, the individual referred to, was an attorney, and also a justice of the peace, and it was clearly erroneous to not permit the witness to answer the questions. It is clear enough the object of the inquiry was to show that he gave notice to an officer of the law of the intended breach of the Criminal Code, which" would have strongly negatived any criminal intent on his part in going. It is also well settled one may prove his own declarations, when made just before or at' the time of starting to a particular place, for the purpose of showing his motives or object in going.
But the error in excluding this evidence was, perhaps, cured by the subsequent testimony of the witness. Further on in his testimony, in answer to the question, “Did you take any steps, after you were informed of the intended robbery, to prevent it?” the witness states that he did, by informing Van-Riper, the constable, and Mr. Byers; that on the day of the robbery he called VanRiper out of Frederick’s store, into the back room, and told him two young men were going to rob an old man, and also told him what Byers had said. The witness then proceeds in these words: “I said, you (meaning Van Riper) had better telegraph to Woodhull and have the officers ready for them. He said, ‘It won’t do. " Let them go on, and if they steal anything they will be caught. If they see the officers, they’ll skip.’ I told him these two, and another from Oneida, were going to rob Milroy; that they were going at 1:40 on that day. I told him to have officers at Milroy’s house. This was in Frederick’s store, in Altona. Milroy’s house was eight or twelve miles from Altona.” In answer to the further question, “Did you call on any one else that day, and inform them of the intended robbery?” the witness replied, “Yes; I saw Martin, the jeweler, of Altona, and I was at Byers’ house for that purpose. I told Van Riper in the forenoon, and told him what Byers had told me about it. I told him I had spoken to Byers, and that Byers had said, ‘Let me know when these men are to do this,’ and I said I would. I said to him, ‘Shall I work with them?’ and he said yes. The conversation with Byers was at six or seven o’clock the night before the talk-with Van Riper, and the talk with VanRiper was in the forenoon of the day we went to Milroy’s. Byers is the man that told me to help them, and encouraged me.”
While Byers denies that Price told him of the intended robbery before it occurred, yet he admits he called at his office next morning and told him all about what had happened, and through the information thus given the parties were arrested that day. Moreover, Col. Buswell, ex-sheriff of the county, testifies to a conversation with Byers, the next morning after the attempted robbery, in which the latter told him all about the affair, and witness states as his best recollection that Byers said Price had told him of the intended robbery before the attempt was made. Mrs. Adams, the mother of Price, also testifies that in a conversation she had with Byers, after the attempted robbery occurred, the latter said, referring to her son, “He did not do as he (Byers) told him ; that he went into the house, when he told him to stay out. ” She further states that her son told her all about the affair next morning, after it occurred. The details of this witness’ conversation with Byers, as given by her, notwithstanding she is the mother of the accused, are so natural and free from anything indicating they might have been manufactured for the occasion, as to irresistibly carry with them the conviction that her statement is true. Moreover, certain concessions are made by Byers, on cross-examination, which we think strengthen her testimony. He fully corroborates her as to the time, place and occasion of her conversation with him, and while he denies that Price told him beforehand of the intended robbery, yet in testifying to his interview with Col. Buswell, he used this language: “I did not tell him (Buswell) that Price came to me and told me of the intended robbery. I think I told him that Bob did not act as I had told him to.” That Price told the constable, Van Riper, of the intended robbery before and on the day it was attempted, and that Price visited Byers on the same day, as he claims, for the purpose of communicating the same fact to him, is not at all disputed. The constable fully corroborates Price’s statements as to the conversation with him in the back room of Frederick’s store, on the day of the attempted robbery. Van Riper, referring to Price, says: “He called me in the back room of Frederick’s store, and said he had something to tell me; that there was to be a racket at Milroy’s, and wanted me to get a squad of men and arrest them, ” etc.
Waiving all controverted questions, the undisputed facts, as appears from the foregoing, are, that the accused, on the day of the attempted robbery, went deliberately to a constable of the town in which he lived and told him all about the contemplated crime, giving the true names of the parties, and telling him when and where it was to take place, and the name of the intended victim; that the attempt was made at the very time and place, and by the parties, stated by him, and that on the following morning he, in like manner, went to a justice of the peace and told him all about what had been done, and furnished him with the true names of the parties implicated, by means of which, on the same day, they were brought to trial, and were subsequently convicted of the crime. That a sane person, really guilty of committing so grave a crime as the one imputed-to the accused, would thus act, is so inconsistent with all human experience as not to warrant the conviction of any one under the circumstances shown. The accused is a mere youth, only some nineteen years of age at the time of this transaction, and the fact that some of his conduct subsequent to the occurrence tends rather to strengthen the view taken by the jury, as is conceded, yet that may well have resulted from his youth and inexperience. But as to the exculpating facts above stated, we see no rational solution of them, and none that is satisfactory has been suggested by counsel for the People which would seem to warrant the conviction.
The judgment of the circuit court" is therefore reversed, and the cause remanded for further proceedings not inconsistent with what is here said.
Judgment reversed.