dissenting:
Dissenting, as I do, from the conclusion reached by the majority of the court, I deem the questions involved of sufficient importance to justify the expression of my views at length, of the whole ease.
At the June term, A. D. 1883, of the circuit court of Henry county, Freeman Price, James Moran and Abel Lindohl were jointly indicted for the crime of burglary. On being arraigned defendants pleaded not guilty. At the trial they were all found guilty in manner and form as charged in the indictment, and the jury, by their verdict, fixed the term each should serve in the penitentiary. Price entered his motion for a new trial. It was overruled, and sentence pronounced on the verdict. To reverse that judgment Price brings the case to this court on a writ of error.
It is not denied that Moran and Lindohl entered the house of John Milroy with the burglarious intent to rob him of his money, which they supposed he had in his house at the time, nor that Price was with them in the house, and did, to some extent, at least, assist them in the attempt they made to compel Milroy to deliver up his money. The defence insisted upon by Price is, that what he did was done without any felonious intent, but with a desire and purpose to detect and bring to punishment the guilty parties.
There is some evidence tending to establish the defence insisted upon, but of course the weight to be given to it was within the province of the jury to determine. It was for them to determine, from all the evidence before them, with what intent he acted. Under the statute of this State, as is well known, the jury in criminal cases are the judges of the law and the fact, and unless some error in the rulings of the court occurs on questions of law, calculated to mislead the jury as to questions of fact involved, or as to the admission or rejection of evidence, their verdict is seldom disturbed.
On considering the instructions given for the prosecution in this case, no serious objection is perceived to any of them. The law applicable to the facts is stated with sufficient accuracy. The fifth instruction of the series given for defendant certainly states the law as favorably for the defence he was making as he could expect to have it given. There is no just ground for complaint in the action of the court in giving and refusing instructions at the trial.
The defence is placed mainly on the broad ground defendant is guilty of no crime. At the trial he offered to prove, by his own testimony, that before going to the house where the burglary was to be committed, he told a justice of the peace, and perhaps a constable, what the parties contemplated doing, and asked the advice of the justice as to the propriety of his going with them, and that he was advised to do so that he might detect the parties in the commission of crime. To the giving of the proposed testimony an objection was interposed by the State’s attorney, which was sustained by the court. If it shall be conceded the testimony tendered was competent, the accused was not prejudiced by the ruling of the court, for at a subsequent period of the trial the testimony was in fact all admitted, and he had the benefit of it. The jury were distinctly instructed by the court to consider such testimony in passing upon the guilt or innocence of defendant. That, no doubt, was done, and that was the utmost the accused could have asked to have done in his favor.
Passing, then, to the consideration of the merits of the defence, there remains only to be considered the question of fact raised on the evidence, and that has relation to the guilt or innocence of the accused. As we have seen, that is ordinarily a question of fact for the jury, but still it is the duty of the court to see that no injustice is done, either from the passion or prejudice of the jury, or from any other cause.. On looking into the testimony contained in the record, it can not be said the verdict is so much against the weight of the evidence as to warrant a reversal of the judgment. It may be, and is, doubtless,, true, the accused had some talk with the constable or the justice of the peace, or with both of them, as to his purpose in going to the house of the prosecuting witness, prior to his going there, and it is certain that after he returned he communicated what had been done, to the officers of the law and others. These facts the jury were told they must consider in making up their verdict. Giving to these and all other extenuating facts all the force they are justly entitled to, it may be the jury rightly judged the accused did more than it would be lawful for a detective to do. It is admitted the accused went to the house of the prosecuting witness with others whose avowed purpose was to rob him of his money. That he might have done with no criminal intent. But he went much farther. It is proven he entered the house where the burglary was to be committed with one who carried a drawn pistol, that he knew was loaded with a deadly charge, that he presented in the face of the prosecuting witness, and “demanded his life or his money, ” and that accused aided him in his wicked purpose by his presence, and by exhibiting an unloaded pistol, and by the use of threatening language calculated to intimidate the witness and his wife, both of whom were old persons, and alone in their house in the night time. But for the unusual bravery exhibited by the prosecuting witness and his wife, the attempt to rob them might have been, and no doubt would have been, successful, and that result would have been accomplished, in part, at least, by the acts of the accused. It might be admitted the accused went to the house with no original felonious intent, yet, as has just been seen, he stood by and aided another while he was attempting to commit a felony. That made him a principal in the wrongful act. It was unlawful for him to aid in the perpetration oí a crime under the pretense he was acting as a detective. His presence in the house with pistol in hand, whether loaded or unloaded, was a cause of terror to the parties assailed, and as effectually aided the man who was attempting to rob them as though the intention of the accused had from the beginning been felonious. It is no answer to this view of the case to say that he notified the officers to be present and make arrests. When he ascertained there were no officers or others present to make arrests, he ought to have stopped before entering the house, and given the alarm elsewhere. This he did not do, nor is it shown he was prevented from doing it by intimidation or otherwise, but on the contrary, he actually participated in the attempted crime. The effect of his presence upon the witness and his wife was the same as if he was in very fact one of the “James boys, ” as he declared he was. The law will tolerate no such conduct. It would be to establish a most pernicious doctrine to hold that a person might participate in the commission of a felony, and obtain immunity from punishment on the ground he was a mere detective or spy upon the conduct of others.
It may be said the accused was a young man, and may have acted unwisely, and did a wrongful act with no criminal intent. The intent of the participator in any act must be gathered from what is done. There is no other mode of arriving at motive. Should it be conceded there are facts and circumstances proven that tend to excuse the guilty conduct of defendant, that is a consideration to be addressed to the executive department of the State, rather than to the courts. It is plainly proven defendant was present, and aided in the attempt to commit a most outrageous crime, and it is no justification to say he was doing it as a detective, to bring others to punishment. One who attempts to detect the commission of crime in others must himself stop short of overt criminal acts. Any other rule would permit great outrages under the specious pretense of detecting crime.
The judgment of the circuit court, in my opinion, ought to be affirmed.
Mr. Justice Craig, also dissenting.
Mr. Justice Walker : I do not concur in this decision.