dissents.
Not agreeing with the views of the majority of the court on all the questions presented, we feel that the importance of the questions justifies us in this separate and dissenting opinion. Áppellánt, Caleb Powers, was indicted in the Franklin Circuit Court charged with the crime of being accessory before the fact of the willful murder of William Goebel. On change of venue, the prosecution was taken to Scott county, and there tried; the result being conviction, the punishment being confinement in the penitentiary for life. Appellant’s'motion for a new trial being denied, he appeals.
The indictment reads, after the caption: “The grand jury of the county of Franklin, in the name and by the authority of the Commonwealth of Kentucky, accuse, Caleb Powers of the crime of being accessory before the fact to the willful murder of William Goebel, committed as follows, viz.: The said Caleb Powers, in the said county of Franklin, on the 30th day of January, A. D. 1900, and before the finding of this indictment, unlawfully, willfully, feloniously, and of his malice aforethought, and with intent to bring about the death and procure the murder *432of William Goebel, did conspire with W. H. Cnlton, F. W. Golden, Green Golden, John L. Powers, John Davis, Oharles Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and other persons to this grand jury unknown, and did counsel, advise', encourage, aid, and procure Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, and others to this grand jury unknown, unlawfully, willfully, feloniously, and of their malice aforethought, to kill and murder William Goebel, which one of the last five above-named persons, or another person acting with them, but who is to this grand jury unknown, so as aforesaid then and there, thereunto by the said Caleb Powers before the fact counseled, advised, encouraged, aided, and procured, did, by shooting and wounding the said Goebel, with a gun or pistol loaded with powder and other explosives, and leaden and steel ball and other hard substances, and from which said shooting and wounding the said Goebel died on the 3d day of February, 1900, but which of said last above mentioned persons, -so as aforesaid, actually fired the shot that killed the said Goebel, is to this grand jury unknown; against the peace, and dignity of the Commonwealth of Kentucky. Bober-t B. Franklin,- Commonwealth’s Attorney», 11th Cir. Ct. Dist.”
IT-pon arraignment, appellant filed a special plea, producing a paper purporting to be a pardon issued by W. S. Taylor, Governor, dated March 10, 1900, and asked to be discharged from custody. The court refused to discharge appellant, 1 hereby refusing to recognize the paper purporting to be a pardon as valid. Appellant then demurred to the indictment, which was overruled by the court, and that action is assigned as error. Appellant, after his special plea, of pardon and his demurrer were both over*433ruled, pleaded not guilty,' and trial was had, with the1 result ais stated.
The question of the sufficiency of the indictment, going to the very foundation of the prosecution, should be first considered; for, if the objection be good, the other questions are not necessary to a consideration of the case. The charge laid in the indictment is that appellant is guilty of being accessory before the fact of the willful murder of William Goebel. The accusing part is that appellant did conspire with Culton and others named, and other persons unknown, and did counsel, advise, encourage, aid and procure Youtsey and others named, arad others to the grand jury unknown, unlawfully, willfully, feloniously, and of their malice aforethought to kill and murder William Goebel, with the further charge that it was unknown what person actually did the killing. The indictment then says these acts were done, “so as aforesaid, then an'd there thereunto by the said Caleb Bowers, before the fact counseled, advised, encouraged, aided, and procured, did by shooting,” etc., kill William Goebel.
Two objection's are presented to the indictment and urged ais fatal. One objection is that it is not charged in terms that the killing was done in pursuance to and in furtherance of the conspiracy charged to have been entered into. The other objection is that the principal (the one who actually fired the fatal shot) is not named, but the charge is that Youtsey, etc., or another person to the grand jury unknown, did the killing. The court is agreed •that neither of these objections is tenable, and is agreed that the indictment is isuffieient. While the indictment does not contain the words usually found, “in pursuance to, and in furtherance of, the conspiracy,” yet it does say *434that appellant, Powers, did counsel, encourage, add, and procure Youtsey, etc., willfully, feloniously, and of their malice aforethought, to kill and murder William Goebel, and then charges,“so as aforesaid then and there thereunto by the said Caleb Powers, before the fact, counseled, advised, encouraged, aided and procured, did, by shooting,” etc., kill William Goebel. The charge is direct and certain that appellant is accused of counseling, aiding, encouraging, and procuring Youtsey, etc.; to commit a willful murder, and that, having been so counseled, advised, aided, and procured, they, or one of them, did commit the murder. Instead of using the words so often used, “in pursuance to, and in furtherance of,” the conspiracy, the indictment charges how it was done, so that appellant would be charged as accessory before the fact if he counseled, added, or procured the murder to be done, and the conspiracy charged failed in the proof; that is, as to the other than the actual principal.
As to the other proposition, that the principal must be named before .the accessory before the fact could be convicted, the court is agreed that this point is likewise without merit. This precise question was presented in the New York Court of Appeals in People v. Mather, 1 Wend. 229, on an appeal by the prosecution. In a very exhaustive opinion, reviewing all the common-law authorities, the court held the indictment good. Again, in the case of U. S. v. Babcock, 3 Dill., 623, Fed. Cas. No. 14,487, the court held such an indictment valid. In U. S. v. Goldberg, 7 Biss., 175, Fed. Cas. No. 15,223, the indictment charged a conspirac}' with certain named persons, “and other persons,” the word “unknown” being omitted, yet the court held the indictment good. In the Anarchist Case (Spies v. People) 122 Ill., 1, (12 N. E., 865), (17 N. E., *435898), this question was again presented, and, after an exhaustive review of all the authorities, the, count concluded the indictment was valid. This last case went to the supreme court on application for a writ of habeas corpus, and the indictment was held to charge a crime, and writ denied. These cases ought to settle the question beyond controversy. ,We are all agreed that the indictment is sufficient, and the demurrer thereto was properly over, ruled.
Counsel for appellant seriously and ably present the question that the pardon issued March 10, 1900, by W. S.' Taylor to appellant, is valid and binding on the State, and that upon its production the appellant should have been discharged. The position of counsel on that point is that on the 10th day of March, 1900, W. S. Taylor was de facto Governor of the State, and so continued until the decision of the Supreme Court of the United States rendered May 21, 1900 (Taylor v. Beckham, 20 Sup. Ct., 890, 1009, 44 L. Ed., 1187), and that until Taylor surrendered the office, or was ousted after the mandate of the Supreme Court was issued, he was a de facto officer, and his acts are binding. It is said that the judgment of the circuit court and of this court was superseded, and that as a consequence J. C. W. Beckham acquired no mere rights under ■the judgment in that case than before it was rendered; that as Taylor had been awarded the certificate of election, and had been inaugurated as Governor, he held till he was ousted by due process of law, or vacated. It is' also suggested that the court will take judicial notice of the official public acts, as well as the signature of the chief executive; that the court must judicially know who is the Governor at any given time. We take it to be well settled that there can not be two de facto officers for the same *436office, to be filled by only one person, at the same time. If, on March 10,. 1900, Taylor was de, facto Governor, then on the same day Beckham was not, and vice versa. Counsel for appellant cites in support of his position the case of State v. Supreme Court, of March 12th, and quotes as follows: “One in possession of an office by virtue of a certificate of election issued by the proper officer, and regular on its face, is entitled to retain possession and perform the duties of the office, without interference, until such certificate is set aside in some appropriate procedure.” A case in 82 Mich., 255, 46 N. W., 381, (9 L. R. A., 408) (Hallgren v. Campbell), is also cited, where the court said: “There could not be two incumbents of this office.” The case of Hamlin v. Kassafer, 15 Or., 456, (15 Pac., 778), is also cited. The court there said: “An ‘office’ is defined to be a right to exercise the public functions and employments, and to take the fees and emoluments, belonging to it, and Chief Justice Marshall says: ‘He who performs the duties of that office is an officer.’ From the inherent nature of an office, no less than from reasons of public policy, there can not be two persons in possesion of it at the same time.” The definition of Lord Ellenborough in Rex v. Bedford Level Corp., 6 East, 368, is cited by counsel to support the contention that Taylor was de facto Governor, „March 10, 1900. This definition is: “An ‘officer’ de facto' is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” The definition of Judge Cooley, in his work on Constitutional Limitations, is also cited. It reads: “An ‘officeir de facto’ is one who, by color of right, is in possession of an office, and for the time being performs its duties, with public acquiescence though having no right in fact.” There are many other citations to the same effect.
*437We do not propose to take issue with any of the authorities cited, for they seem to us to state the law ‘clearly and! correctly. The question1 is in the application. The court judicially knows that on the 1st day of January, 3.900, the General Assembly, in pursuance to the power given it under our Constitution, decided the contest over the office of Governor in favor of the contestant, William Goebel. The court knows judicially that on that day William Goebel was inaugurated as Governor; that he afterward died, and J. C. W. Beckham- became, by virtue of the law, he being Lieutenant-Governor, the acting governor from the 3d day of February, 1900. The court further knows that it was decided by this court, and its decision was sustained by the supreme court of the United States, that the courts had no jurisdiction in the matter; that the decision of the contest before the General Assembly was final and conclusive, from which there was no appeal. While W. S. Taylor executed a supersedeas bond to supersede the judgment of the circuit court, and of this court, he did not and could not ' supersede the judgment and decision of the General Assembly on the question as to whether he or William Goebel had been legally and duly elected Governor in November, 1899. The appropriate procedure provided by law to set aside the certificate of election issued to W. S. Taylor is a contest before the General Assembly, and when the contest was decided by that body, and the successful party took the required oaths, he became the Governor. There is no writ provided, nor is one required, to induct a successful contestant into office, or remove an unsuccessful one from office. The judgment of a motion in the contest proceeding is self-executing. This judgment was not appealable, and, therefore, could not be suspended, arrest*438ed, or superseded. Even if the decision of contest had been appealable to any tribunal, it is well settled by authority that a supersedeas or writ of error will not prevent the successful party in the contest from assuming the duties of the office. State v. Woodson, 128 Mo., 497, 31 S. W., 105); People v. Stephenson, 98 Mich., 218, (57 N. W., 115); Jayne v. Drorbaugh, 63 Iowa, 711, (7 N. W., 433); State v. Chase, 41 Ind., 356; Elliott, App. Proc., section 392, and cases cited.
Stress is laid by the adjudicated cases on the color of right or title to the office, and not on the claim. In the case of Williams v. Boynton, 147 N. Y., 426, (42 N. E., 184), the court of appeals said of the rule as to de facto officers: “It applies for the protection of third persons, or the public who have acquired rights upon the faith of an appearance of authority. It does not apply where the official action is challenged at the outset, and before any person has' been or can be misled by it. . . . His color of title was wholly destroyed by a public judicial decision, and he became a mere usurper and intruder, whose act was challenged at the moment it was done.” In the case of Oliver v. City of Jersey City (from N. J. Court of Errors and Appeals) 44 Atl., 709, cited by appellant as 48 L. R. A., 412, the court, speaking of the acts of a de facto officer, said: “But this legal protection is not afforded where the defects in” the title to the office are notorious, and such as to make those relying on his acts chargeable with such knowledge. What, then, may be ■ considred notice sufficient to warn thirdi persons and the public? The expiration of the term of an officer, and the appointment or election and qualification of his successor, the resignation of 'a public officer, the abolishment of the office itself by the act of the Legislature, the refusal of the board and legislative body of *439which the officer is a member to recognize him, and the judgment of a court against the title of the office, are such facts as third persons and the public are, as a general rule, required to take notice of.”
The decision of the contest by the General Assembly was a judgment of the only court constituted by law to determine a contest over the office of Governor, and of that decision the appellant is presumed fo have had actual notice, and the public generally must take notice. The color of title that Taylor had by reason of the certificate of election and his inauguration was wholly destroyed! by the judgment of the General Assembly when the contest was decided against him, and thereafter, in the language of the court of appeals of New York, “he became a mere usurper and intruder, whose act was challenged at the moment it was done.” The supreme court of Rhode sland, in the case of Murphy v. Moies, 25 Atl., 977, said: “Thus, it appears that reputation and acquiescence are controlling elements in determining the validity of official acts, as those of an officer de facto” Tested by this rule, it is clear that Taylor’s acts on the 10th day of March, 1900, were not those of a de facto officer. His acts were not accepted by the lawmaking branch of the government. Prior to that day, and on that day, the senate had repeatedly ratified and confirmed the appointment of various and sundry officers appointed by Governor Beckham, and both branches of the Legislature had recognized Beckham as Governor by presenting bills for his approval and signature, and he had in fact approved three of such. There was no acquiescence in the acts of Taylor on the 10th day of March, 1900. The rule that acts of a de facto officer are binding on the public and third persons can not apply where the defects in the title of the assumed officer are notorious, and the persons *440dealing with him have notice of the facts. Mechem, Pub. Off., 328, and cases cited.
In this- case, the appellant, being Secretary of State when the contest was decided by the General Assembly, must be conclusively presumed to have had knowledge of the defects in the title of Taylor, or rather that he thereafter had no title to the office. We think it clear, upon the plainest principles, that where a person has knowledge-that one who assumes to be a public officer has, by a judgment of .a competent tribunal, been adjudged not to have title to the office, such person can not claim that the acts of such intruder and usurper are those of a de facto officer.
During the progress of the trial, many objections to the admission of testimony and many exceptions to the exclusion of testimony were made. Likewise objections and exceptions to instructions- given and refused appear in the record, and, in order to an intelligent understanding of the case and the parts we propose to discuss here, we deem a short statement of the material facts the evidence tends to prove to be necessary.
These facts are that William Goebel was a member of the senate, and was also a contestant for the office of Governor against W. S. Taylor, contestee, the case being heard before a joint committee, as provided by law. On the morning of January 3d, 1900, after all the testimony in the contest case had been heard, while on his way to the session of the s-enate, and just in front of the State house, the contestant, William Goebel, was shot down, from which he died in a few days thereafter. The proof further tended to show, with reasonable clearness, that the shot was fired from a window in the private office of appellant, Caleb Powers, who was then Secretary of State. (It had been agreed that the testimony heard before the committee on *441contest for Governor should be heard and used on the trial of the contest over the office of Secretary of State by G. B. ■Hill against appellant.) At the time of the shooting, the window was raised a few inches, and the blinds down. On that morning, just prior to the shooting, appellant Powers, together with his brother, John L. Powers, Walter Day, and F. W. Golden, had taken the train for Louisville. It is shown that on January 19, 1900, the militia company of Frankfort was secretly assembled, ■ the members out of town were brought in, and board engaged for them in the city near the arsenal. This company was stationed at the arsenal, and given orders to be at all times in readiness to move on orders. They were drilled daily on up till the 80th, but in secret inside the arsenal. There were forty-four men in the company. It is also shown that about this time, probably 18th, a meeting was held, in which appellant was an active participant, if not the moving spirit, for the purpose of arranging to bring a large body of armed men from the eastern section of the State to Frankfort for the purpose, as appellant himself states it, of influencing the legislative action by their presence. These men were, as arranged in that meeting, to be brought from- Bell, Harlan, Clay,- Laurel, Whitley, Pulaski, Rockcastle, Metcalfe, and other counties-. They- were all to be brought over the Louisville & Nashville Railroad, and it seems, at first contemplated, were not to have tickets or passes, but were to climb on the train and come. To arrange for these men, and to have the requisite number come (there was about 1,500 contemplated), messengers were sent out to the various counties, and appellant provided these men with money to bring the men to the -railroad stations. At this meeting to arrange for these men it was recognized that the undertaking was a serious one, appellant himself cau*442tioning the persons present to secrecy, as they might all be indicted for conspiracy. To further arrange for these parties to come, the appellant, Powers, sent telegrams to parties in the eastern end of the State, to meet him on important business at London, Ky. Appellant had a conference there with some parties, and made further arrangements about the men coming on January 25th. There was a third conference, at Barbourville, relative to the same matter, by appellant with other parties, Charles Finley, F. W. Golden, and John L. Powers being present. It was there determined that the men should have tickets and should come as passengers. In the town of Barbourville there were two companies of militia. John L. Powers was the captain of one company, and J. F. Hawn the captain of the other. While at Barbourville, January 22, 1900, appellant addressed to Adjt. Gen. Collier, a letter, as follows: “My Deay Sir: There are two of the companies in this end of the State that refuse to go unless they are called out regularly. The London company, under Capt. E. Parker, and the Williamsburg company, under Capt. Watkins, of Williamsburg, are the ones. We must have these men and guns. We are undertaking a serious matter, and win we must. Send some one to London and Williamsburg with such orders as will have these two companies join us Wednesday night. Don’t fail. If you will see to it, wire me to-morrow. Golden is improving. Capt, Hawn, of one of the companies here, refuses to deliver up the keys to the armory. Give him such orders as will give us the key. Wire me, and also write me. We will be there Thursday morning with twelve hundred men or more. Arrange board and lodging. Very sincerely, Caleb Powers.” Capt. Hawn, of the Barbourville company, had been asked to give the key to the armory to his lieutenant, after he himself *443had refused to bring his military company to Frankfort with the large crowd to come on the 25th, Thursday; and to permit the members to bring their arms, ammunition, and uniform along. All of this Capt. Hawn had declined before this letter was written by appellant. Before the large crowd was to come, appellant ordered printed badges on white ribbon, bearing the picture and autograph signature of W. S. Taylor, contestee for Governor, which were distributed to the men on the train, and worn on their coat lapels.
On the morning- of January 25, 1900, between 1,009 and 1,200 armed men were brought to Frankfort, according- to this prearranged plan. They filled the regular passenger train, and had an extra train following. Powers himself came on one train with part of the men. As part of this large body, there were several companies of State militia, with their -officers, in citizens’ clothing1, but their uniform underneath, and with their arms and equipments. .When this large body arrived in Frankfort, they were marched from the train to the building, where the Adjutant-General keeps his office, and their guns were checked and stacked in the office of Commissioner of Agriculture, which is next ddor to the Adjutant-General’s office. Checks had been provided. The men kept their pistols, for the most part, but their guns, army rifles, shotguns, and such like were checked. The men were then fed from provisions that had been brought from Louisville. These men were assembled, and speeches made to them, and SQ-me resolutions adopted. On the night of the 25th, the same day they came, a large part of the men were sent home, but about 200, maybe more, picked men, were kept and remained in Frankfort, with general headquarters at the Commissioner of Agriculture office, up till after the shoot*444ing. They slept in. the State buildings, and cooked and eat on the public grounds. It is shown that these men, from .the 25th, the day they came, up till the very day, of the shooting, were each day seen in crowds in front of the capítol building, and on the walks leading from the front gate, and on around the buildings.
On the morning that William Goebel was shot, although these men were here in the city, none were to be seen on the walks or public grounds. It is shown that within a short 'time of the shooting, variously estimated from ten to thirty minutes, the company of militia stationed at the arsenal were at the capítol grounds, and took possession thereof, and excluded the civil authorities. It is also shown that there were probably as many as twenty-five persons on the first floor in the executive building, from whence the shot came, at the moment it was fired; there were several persons in the Secretary’s public office, adjoining the one from whence the shot came. The Governor himself, W. S. Taylor, who is accused with appellant, was within fifty feet of the assassin when the shot was fired, and heard the shot. The capítol policeman, John Davis, w'ho is also accused, was in the public office of the Secretary of State, and heard the shot. The appointees- of the Governor, Todd, private secretary, and Stone, stenographer, together with appointees of appellant in the office of Secretary of State, Davidson, Hemphill, and Matthews, and the'colored porter, were also in the adjoining room to the private office. It was also proven that Youtsey, who is charged as one of the principals, bought smokeless powder and steel ball cartridges of the size and caliber of the one shown to have killed William Goebel, and that immediately after the shooting Youtsey ran down the steps into the basement of the executive building, through the barber *445shop that was then there, and out and around the building, and into it again from the other side, very much excited. The top of the stairway down which Youtsey ran is within a few feet of the door into the private office of appellant. It is shown that appellant locked that door upon starting for Louisville, but that John L. Powers had the day before given Yontsey a key, and there were but two known. It also appears that, before the 30th, Youtsey had described how Goebel «mid be shot from the private office from the window — the identical plan afterward carried out. In describing this plan, Youtsey said it was the slickest scheme yet to settle the contest. Just before the shooting Youtsey called and stationed a body of men in the hall near the door of the private office, and near the head of the stair, down to the basement, telling them something was going to happen. Besides all these circumstances proven, there was direct evidence of two or three admitted conspirators, showing that a conspiracy was formed and its objects.
Without contradiction, even by appellant himself, it is shown that he was the leading spirit in organizing and bringing this large body of men to Frankfort, and in keeping them here, as he says, to influence the Legislature by their presence, and to resist by force of arms the legally constituted authorities in any attempt to oust Taylor or himself from office. Frequently before the shooting appellant expressed himself as being in favor of war rather than surrender the offices claimed. After the assassination, appellant wrote to a friend in Eastern Kentucky, in substance: “The disorganization of the Democratic party is due to me more than to any other person.” It is also shown that appellant said that, if necessary, he would kill William Goebel to prevent him being Governor, and again he said that with Goebel dead there was no other person *446who could hold the Democratic party together. Youtsey was seen in appellant’s private office at the window, with a gun, and this appellant knew and saw, and was in the room with Youtsey alone, and had a conversation with him on Friday or Saturday before the killing on Tuesday, yet this conversation is not detailed by appellant, nor is its substance or subject stated. There were many other facts and circumstances proven on the trial, all tending to show that there was a conspiracy formed by appellant with others, known and unknown, for the purpose of preventing Goebel being declared Governor, and to use such force as might be deemed necessary to that end.
During the trial the prosecution introduced and had sworn Pat McDonald, who testified that on Saturday before Tuesday, January 30th, when Goebel was shot, two men came from upstairs, where the General Assembly was in session, and had just decided the contested seat of Van Meter against Berry, by which decision Berry, a political adherent and supposed friend of Taylor, had been unseated, and Van Meter, a political adherent -and supposed, friend of Goebel, had been given the seat; and these two men went rapidly toward the front door of the capítol building, and one said: “Gome on. Gome on, boys; get your guns; it is time to begin’the killing.” Witness could not name these two men, nor did he describe them so as to be identified'. However, witness did say they went out and around to the office of the Commissioner of Agriculture, where the guns had been checked on Thursday before, and where was general headquarters of the 200 or more men kept here, out of the large crowd of Thursday. The opinion of the court holds the evidence to be incompetent because the parties were not identified, nor was1 it pretended that appellant was present and heard *447tlie statement. We are of opinion that the evidence was competent. Proof had been introduced that tended to show that a part of the plan of the conspiracy was to raise a disturbance in the legislative hall over the Van Meter-Berry contest, and in the fight that followed the men left over from Thursday, who wore Taylor badges and were to be stationed in the gallery and lobby of the. legislative hall, were to kill Democratic members of the Legislature, so that on a joint vote Taylor could be declared the Governor in the contest proceeding. We have said above there were some 200 men retained here from Thursday, and there was proof tending to show that this was a part of the plan and purpose of keeping them. Their headquarters were in the very room where these two men, whom McDonald heard and saw, went. Their guns were deposited there. The very matter had come up about which the disturbance was to be raised, and the result had been adverse to Taylor. These men are shown by McDonald not to have been citizens of Frankfort, for he lived here. We think it was sufficiently shown that these men belonged to the large number kept here, and this testimony also tended to corroborate the other testimony of the conspiracy and of the plan to kill members of the Legislature. The time, the place, the circumstances, and the fact that they proposed then to do the things that was contemplated, and they went to headquarters, so to speak, for their guns, we think sufficiently show that these two were acting in conjunction with others who are shown to have known of, and were detailed to execute, the plan of assassination in the legislative hall, to permit the proof to go to the jury. We> agree with the court that this was important testimony, and we think it was properly admitted.
*448The appellant offered to read to the jury what purported to be the resolutions adopted at the meeting in front of the eapitol on January 25th, by the large body of men, and the court refused to permit it to be read as evidence for any purpose, and the majority opinion holds this- to be error. We can not assent to this proposition. We do not think these resolutions were competent evidence for any purpose. There was no attempt on the part of the prosecution to prove any action on the part of the body assembled, nor of anything said by any speaker that addressed the body. Indeed, it was not proven by the prosecution that a meeting was held at all, except as an incident to fix a time and place of a certain conversation had between two persons, Noaks and John L. Powers. Noaks details the conversation this way: ‘While I was leaning against the pillar, John L. Powers came to me, and tapped me on the shoulder, and said,.‘Bob, keep close into the building-;’ and I said, ‘What is the matter?’ and he said, ‘Some of our men are upstairs, and when Goebel and some of the rest of them fellows come in there we are going to do the work for them.’ ” The witness said the conversation took place in front of the capítol building, while the meeting was going on. The witness did not attempt to detail anything that was done at the meeting.' On the contrary, the witness gave this as a private conversation between himself and John L. Powers, an alleged co-conspirator with appellant. We do not understand upon what principle of law or rule of evidence that this would entitle appellant to prove what the public meeting did, nor what any one of the thousand persons engaged therein said or did. Appellant was entitled to the whole of the conversation between Noaks and John L. Powers, and this the court permitted; but the rule would not extend to the admission of what was or may have *449been said in private conversation by others there present while the meeting was in progress. We do not understand that the statements of John L. Powers, supra, were admitted because of the time and place they were spoken, but because it had been shown aliunde that John L. Powers acted with appellant in bringing the large crowd to Frankfort, and knew and understood the full object in thus bringing them. Indeed, John L. Powers at that time is shown to have had his military company here, with their uniforms, arms, and equipments, and was a leader-in command, and, it might be said, spoke as one with authority. This evidence would have been admissible if spoken at any other time and place, and because Powers spoke to Noaks the words of caution or warning to be on the alert at the time the meeting was in progress did not and could not render admissible evidence of the public proceedings of the meeting, as neither was a part of the other, nor explanatory thereof, and, in fact, had no connection the one with the other, save that of time and place. There was proof also of statements made by more persons in the crowd, but the whole of these declarations was admitted, and such proof did not warrant evidence of other statements made at a different time, even by the same parties and at the same place.
There is a yet stronger reason why this testimony was properly excluded. The whole testimony tends to show that the plans and purposes, as well as the fact, of their coming, was kept secret from the public. Cipher telegrams were sent, and messages were signed by initial instead of the full name, and such like acts, to keep the matter secret.- Secrecy was enjoined by appellant on all. “It was a serious business they were undertaking,” to use an *450expression of appellant; and no rule of evidence.would permit this armed body to prove for themselves, to establish their innocence, the fact that they held a public meeting on the capítol steps, and there passed resolutions declaring their peaceful mission and intentions, when, at the same time, they had arms and ammunition ready at hand in abundance, as well as smaller arms on their person. The law will not permit such proof as a person’s own declarations of innocence to show that he is not guilty. Would any person suppose that this body of men would have assembled on the capitol steps, and by resolution have declared their purpose to be that of terrorizing and intimidating the members of the- General Assembly, “or, if necessary,” to use Powers’ words, “kill Goebel to prevent him being Governor?” We say, if this was their purpose, would any person expect them to publicly so declare by resolution? If their purpose was a peaceable one, as the resolutions must of necessity declare, to be of benefit to appellant, why were all these warlike preparations- made? Why these arms, ammunition, and soldier equipment brought? We think this testimony properly excluded.
It is also maintained that instruction 12 asked by appellant should have been given, to the effect that the evidence of A. R. Reed, J. B. Watkins, Ze-pakeal Seats, and N. C. Hazlewood could only be considered by the jury for the purpose of discrediting the witness Sparks, and not as substantive testimony against appellant. It is held by four members of the court that this testimony might have been considered as substantive evidence on the merits of the case if it had been given in chief, as there was testimony tending to show that Sparks was one of the conspirators, and, if this was true, his declarations were competent against appellant. It was on this ground the *451court below refused to give the instruction; but it is said that, although this testimony would have been competent on the merits if admitted in chief, it could only be considered for the- purpose of discrediting Sparks, ats it was not introduced in chief, but as a part of the State’s rebuttal testimony. There might be force in this position, if it appeared that appellant was in any wise prejudiced, by the failure of the State to introduce this testimony at the proper point; but where he was not misled, and has had full opportunity to introduce all the testimony on the subjct that he desired, there seems little force in the objection. The trial court has a discretion to admit evidence in rebuttal which should have been admitted in chief, when, under the circumstances, it may appear right to do so, especially in a case involving-a great multitude of facts like this; and this court never interferes with the exercise of a discretion of this character, unless palpably abused. The trial court did, however, give the jury instruction 6, which is as follows: “If the jury believe from the evidence beyond a reasonable doubt that a conspiracy was formed between the defendant and W. H. Guitón, F. W. Golden, Green Golden, John L. Powers, John Davis, Charle® Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, or either or any of them, or with others to the jury unknown acting in concert with them, or either of them, to kill William Goebel, then, after the formation of said conspiracy, if any, every act and declaration of each of the conspirators, done or said in furtherance of the common design, before the consummation thereof, became the act or declaration off all engaged in the conspiracy.” Under this instruction, no statement of Sparks could be considered by the jury, unless he was one of the conspirators, *452and not then, unless it was made in furtherance of the common design. This was more favorable to the accused than the rule usually laid down by the authorities. When the fact of a conspiracy has been proved or established by reasonable inference, the acts and declarations of one conspirator in furtherance of, or made with reference to, the common design, are admissible in evidence against his associates.” 6 Am. & Eng. Enc. Law (2d Ed.) 866. In the notes to the above, a large number of cases are collected. Under the instructions of the court as given, the testimony as to the declarations of Sparks could not be considered by the jury at all, unless it was shown beyond a reasonable doubt that Sparks was one of the conspirators, and the statements were made in furtherance of the conspiracy. We are therefore unable to see that the appellant has any ground of complaint in this matter.
It is also maintained that the court erred in giving to the jury instructions 4, 7, and 8; but it is difficult to perceive how either of these instructions furnishes any ground for a reversal of the judgment.
First. As to instruction No. á: The idea the court aimed to present to the jury by this instruction was that if appellant conspired with others to bring a number of armed men to Frankfort for the purpose of intimidating the Legislature in its action on the contest before it, and in pursuance of said conspiracy advised the killing of members of the Legislature, and Goebel was killed by those in conspiracy or acting with them, in pursuance of said advice, appellant was guilty of murder. If the phraseology of the instruction is changed as indicated in the opinion, ii would read as follows: “(4) If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, Caleb Powers, conspired with, ... or either or any of *453them, or other person or persons unknown to the jury, acting with them, to bring a number of armed me'n to Frankfort for the purpose of doing an unlawful or criminal act, and in pursuance of such conspiracy defendant did advise, counsel, or encourage the killing of members of the Legislature, and that said William Goebel was a member of the Legislature, and was killed in pursuance of such advice, counsel, or encouragement, and that said killing was induced or brought about thereby, then the defendant is guilty of murder, whether the person who perpetrated the act which resulted in the death of William Goebel be identified or not, and it does not matter what change, if any, was made by the conspirators as to their original design, or the manner of accomplishing the unlawful purpose of the conspiracy.” If the instruction is put in this shape, the sense will be in no wise materially different from that given -by the court below and quoted in the majority opinion. It undoubtedly expresses a sound principle of law; for if appellant, and those acting in concert with him, brought the armed men to Frankfort for an unlawful and criminal purpose, and he, in furtherance of the conspiracy, advised the killing by them of the members of the Legislature, and thus brought about the killing of Goebel, he was certainly guilty of murder, although a change was made in the plan or the manner of executing it. We are unable to see that there was any error in this matter. The words, “unlawful act,” are defined in instruction No. 7, which will next be considered.
Second. As to instruction No. 7: In 1 Roberson, Ky. Cr. Law, section 100, the author, illustrating the rule that “a conspiracy to commit a crime may be consummated, and the conspirators become guilty thereof, although the plan is not executed in exact accordance with the original *454conception,” well states the result of the authorities as follows: “So, if several persons conspire to invade a man’s household, and go there armed with deadly weapons, for the purpose of attacking and beating him, and in furtherance of this common design one of them gets into a difficulty with him and kills him, the others being present or near at hand, the latter are guilty of murder, although they did not intend to kill. Where persons combine together for a general unlawful purpose, as ‘to resist all opposers in the commission of a breach of the peace’ and for that purpose assemble together and arm themselves, thus intending to resist the lawfully constituted authorities of the country, they are all answerable for anything done in the execution of it, and it is no defense that the parties had no well-defined or particular mischief in view as the result of their combination. If persons illegally concur in doing an act, they are guilty of a conspiracy, although they were not previously acquainted with each other. And the time when one entered into a conspiracy does not make any difference as to his responsibility for acts done to carry out the common purpose, the rule being that those who join in a conspiracy previously formed, and assist in its execution, become a party to all acts done by other parties, before or afterwards, in furtherance of the original design. The addition of new "parties, subsequent to the formation of the conspiracy, does not destroy its identity, but it continues as the same conspiracy.” In Peden v. State, 61 Miss., 268, several persons conspired to take the deceased from his house and whip him. In executing this purpose, one of them struck him a fatal blow with a spade, from which he died. All were held guilty.of murder, whether they entertained a purpose to kill him or not. The same rule was announced in State *455v. Shelledy, 8 Clarks, 478; Miller v. State, 25 Wis., 384; and Williams v. State, 81 Ala., 1, (1 South., 179). In 1 Hale, P. C., 441, the law is thus stated: “If divers persons come in one company to do an unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them in doing thereof kill a man, this shall be adjudged murder in them all that are present of that party, abetting him and consenting to the act, or ready to aid him, although they di<¥ but look on.” The same principle applies to those who set on foot and procure the unlawful undertaking, though absent from the scene when the deed is done. Spies v. People, 122 Ill., 1, (12 N. E., 865), (17 N. E., 898); (3 Am. St. Rep., 320), and note. Thus,in Brennan v. People, 15 Ill., 512, several persons were indicted for murder. Instructions were asked to the effect that the jury should acquit certain of the prisoners unless they actually participated in the killing of the deceased, or the killing was done pursuant to a common design to take his life on the part of the prisoners and those doing the act. The court said: “Such is not the law. The prisoners may be 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 ac.t, such as to beat or rob Story, and that he was killed in the attempt to execute the common purpose. Tf several persons conspire to do an unlawful act, and death happens in the prosection of the common object, all are alike guilty of the homicide.” The rule is thus clearly stated in V» Am. & Eng. Enc." Law (2d Ed.) p. 870: “When individuals associate themselves in fin unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is, in legal content*456plation, the act of all.” And in a note this is added: “It is immaterial, as affecting the question of co-equal responsibility on the part of conspirators for the acts of each other, that one or more were not actually present at the consummation of the preconcerted design.” At common law, if the object of the conspiracy be the commission of a felony, and a homicide is committed in carrying its design into execution, the killing is murder; and the authorities concur that if the unlawful act designed is dangerous, and probably requiring the use of force or violence, which may result in- the taking of life, all the' conspirators ar.e criminally liable for whatever any of them may do in furtherance of the common design, whether they' are present or not. 1 Bish. New Cr. Law, sections 633a, 636; Lamb v. People, 96 Ill., 73; U. S. v. Lancaster (C. C.) 44 Fed. 896, (10 L. R. A., 333); Boyd v. U. S., 142 U. S., 450, (12 Sup. Ct., 292), (35 L. Ed., 1077): U. S. v. Ross, 1 Gall., 624, Fed. Cas. No. 16,196; People v. Brown, 59 Cal., 351; Reeves v. Territory (Okl.) 61 Pac., 828.
Section 1241a, Kentucky Statutes, contains, among others, the followng provision: “'(1) If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing, or injuring any person or persons, . . . they or either of them shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor mure than five years.” It will thus be seen that it is made a felony for two or more persons to confederate themselves together for the purpose of intimidating or alarming another. Following the - authorities we have cited and the foregoing statute, the court gave the- jury instruction No. 7, in these words: “The court instructs the jury that if they believe from the evidence, beyond a *457reasonable doubt, that the defendant, Caleb Powers, conspired with W. H. Guitón, F. W. Golden, Green Golden, John L. Powers, John Davis, Charles Finley, W. S. Taylor, Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, or any one or more of them, or with some other person or persons unknown to the jury, acting with them or either of them, to do some unlawful act, and that in pursuance of such conspiracy, or in furtherance thereof, the. said Henry Youtsey, James Howard, Berry Howard, Harlan Whitaker, Richard Combs, or some one of them, or some other person unknown to the jury, acting with them, or with those who conspired with the defendant, if any such conspiracy there v/as, to do the unlawful act, did shoot and kill William Goebel, the defendant is guilty, although the jury may believe from the evidence that the original purpose was not to procure or bring about the death of William Goebel, but was .for some other unlawful and criminal purpose. The words ‘unlawful act,’ as used in this instruction, mean some act to alarm, to excite terror, or the infliction of bodily harm.” Not a few authorities hold that if the conspiracy involves the commission of a felony, and a homicide is committed by any of the conspirators collaterally to the main design, and not in pursuance of it, all are guilty of murder. It will be observed that the court did not so instruct the jury, but that by the instruction quoted above they were plainly told that the homicide must have been' committed in pursuance of the conspiracy or in furtherance of it. The instruction was intended to present to the jury this phase of the case shown by the evidence: While the Legislature had before it the election contest, appellant and a number of others entered into a conspiracy to bring to Frankfort a large body of armed men, some of *458them feudists, and others known for their dangerous character., for the purpose of intimidating the Legislature in the discharge of its official duties, and pursuant to this conspiracy they got together about 1,000 men, and brought them to Frankfort.. This body reached ¡Frankfort on January 25th. Most of them were sent home that evening, but about 200 picked men were retained, and were still at Frankfort, armed, collected about the State house, and crowding the lobbies from day to day, until the deceased was killed, on January 30th. On January 25th, a number of these men undertook to force their way into the hall of the house of representatives, and a catastrophe was then narrowly averted by the prudence of the speaker. A conspiracy of such a character was of necessity dangerous to life, and subversive of the foundations of the State government. No one realized the gravity of the undertaking better than appellant, for, in his letter written while getting his men together, he said, as quoted above: “We must have these men and guns. We are-undertaking a serious matter, and win we must.” His friend, the banker, John A. Black, says: “He said he wanted an armed mob, . . . and that it would likely have an influence over .the Legislature.” As we understand the court, the instruction is held erroneous for the reason that it does not submit to the jury the question whether the homicide was the natural result of the conspiracy, or such a thing as might be ordinarily expected to happen. It is not necessary that the death of the deceased should have been contemplated as the probable result of the .conspiracy. If the conspiracy was such that the conspirators must naturally have contemplated that it would result in violence, or that the infliction of personal harm upon others might reasonably be antici*459pated in its execution, then all are responsible for the homicide. On the facts of the case, it would have been both idle and improper to have submitted to the jury whether the death of the deceased was a result reasonably to be anticipated by those entering1 the conspiracy; for the character of the conspiracy was such as necessarily involved a show of force, and deeds of violence were ■plainly within its probable consequences. It is wholly immaterial whether the death of the deceased was anticipated, or the death of any other pérson in particular. Such a c-rime against good government can not be tolerated among a law-loving people, and those who undertake to stop the ordinary processes of the law by intimidation and force must be held responsible for all the consequences of what is done in furtherance of the design. The court might properly have instructed the jury, in plain words, that if there was a conspiracy to bring a band of armed men to Frankfort for the purpose of intimidating the Legislature in !he discharge of its official duties, and the men were so brought to Frankfort, and the deceased was killed in furtherance of this conspiracy, or in pursuance of it, by any one of these men or of those in the conspiracy, appellant, if a party to the conspiracy, was guilty of murder. The instruction he gave is more favorable to the appellant than the one indicated; for the reason that it states to the jury the general rule of law, without directing their attention to the particular facts of the case. The court, no doubt, put his instruction in this form for the benefit of the appellant, and to conform to a line of decisions by this court condemning instructions giving prominence to certain facts. The instruction appears to us *460to be not only unobjectionable in point of law, but to be more favorable to the appellant than the law required,
Third. As to instruction No. 8: Section 241 of the Criminal Code of Practice provides: “A conviction can not be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.” Following the words of the statute, the trial court gave instruction. No. 8,' which is as follows: “The jury can not convict the defendant upon the testimony of an accomplice, unless such testimony be corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if itmerely shows that the offense was committed, and the circumstances thereof.” It is maintained that the instruction is misleading, as there were several accomplices who testified on the trial, and under it the jury may have understood they were warranted in convicting on the testimony of one accomplice when supported by another, and that thus appellant might be convicted on the testimony of accomplices without other corroborating evidence. The statute clearly does not allow this; for this would be but a conviction “upon the testimony of an accomplice.” The words, “unless corroborated by other evidence,” clearly refer to other evidence than the testimony of an accomplice. The instruction is in the words of the statute, and conveys the same meaning, although the sense might have been made plainer by adding an “s” to the word “accomplice,” and omitting the word “an,” so as to make the clause read: “The jury can not convict the defendant upon the testimony of accomplices, unless,” etc.
*461The testimony of the accomplices as to the vital facts was corroborated by other evidence, and by circumstances established beyond question. It is clearly shown that appellant was not only a party to, but a leading spirit in, the conspiracy to bring to Frankfort and keep here the band of men, supplied with arms and ammunition. Such things are not done vainly or without a purpose. No jury of intelligence could believe that such an armament could be organized and brought to the seat of government but for the purpose of intimidation. Whether they might not also infer, from the fact that so many of the State militia were brought along dressed in citizens’ clothes, that the purpose was to use this militia as State troops to protect them from arrest, or to hold their own against the civil authorities, we need not determine. In any view of the facts, the enterprise was a felony, producing a condition of anarchy at the State government, and the peace and good name of the State require that the majesty of the law should be upheld in such a manner that it will not be repeated. It, of necessity, contemplated such a state of things that violence, if not bloodshed, would follow in its wake, and where a homicide was committed in furtherance of it, appellant, who was its director, was clearly guilty of murder.
To reverse the judgment of conviction on the facts which are either admitted, or so clearly established as to be beyond controversy, is not only to delay justice, but to give no force to the statute providing that such judgments may only be reversed when, on the whole record, the court is satisfied the substantial rights of the accused have been prejudiced. We therefore dissent from the opinion of the court.
Chief Justice Paynter and Judge Hobson concur in this dissent.*462The appellant filed a petition for extension of the court’s opinion to which Judge DuRelle made the following response :
The court is of opinion that the defense should have been permitted to contradict the witness Sinclair’s denial of a conversation asked for on cross-examination which tended, if true, to show that his testimony had been purchased. The majority are also of opinion that a witness may be permitted to explain what he meant by spoken words, but not what he meant by written words, unless ambiguity exists as to their meaning, and, further, that the rulings of the trial court as to the admissibility of explanations of written words were correct. To the extent indicated, the opinion is extended, and the petition is overruled.