
    CASE 67. — INDICTMENT AGAINST JAKE EDLIS AND OTHERS FOR CONSPIRING TO INTIMIDATE ANOTHER.—
    Feb. 2, 1909.
    Commonwealth v. Ellis, &c.
    Appeal from Calloway Circuit Court.
    Thos. P. Cook, Circuit Judge.
    On a separate trial of Ellis the jury failing to agree were" discharged by the court and the Commonwealth certifies questions to the Court of Appeals which certifies its answers to the trial court.
    1. Conspiracy — Trial—Instructions.—Instructions, in a prosecution for conspiracy, bel'd correct.
    2. Conspiracy — Intimidation—Admissibility of Evidence. — On a trial for conspiracy to intimidate a certain person, a witness for tbe commonwealth on direct examination was asked whether or not the person, wh,o came to see him at the time defendant said he would have a person there, told him to turn off the switch that night, and ’answered in the affirmative.- Held, that the question and answer were competent.
    
      5. Conspiracy — 'Intimidation—Admissibility of Evidence. — On a trial for conspiracy to intimidate a certain person, the court properly excluded a part of an answer of a witness for the commonwealth as to what was told him hy one he called “John”; the latter not being a defendant, and. there being no evidence that he belonged to the band, or any explanation as to who he was, or as to what connection be bad with the case.
    4. Conspiracy — Evidence of Defendant’s Connection with Conspiracy. — In a prosecution for conspiracy, it must first be shown that defendant was a member of the hand by which the intimidation was accomplished, hut such evidence need not be direct or positive, and may be made up of isolated or fragmentary facts.
    6. Conspiracy — 'Responsibility for Acts and Declarations of CoComspirators. — When a defendant’s guilty connection with a conspiracy is established, he is chargable for all the acts and ■declarations of his co-conspirators made during its existence and in carrying it forward to its unlawful ends.
    6. Criminal Law — Evidence—Declarations of Conspirators. — it cannot be shown that defendant belonged to' a band of conspirators 'by hearsay declarations of the conspirators themselves.
    7. 'Conspiracy — Issues and Proof — iWpiefe a charge of conspiracy is limited to a single act of the conspirator to intimidate a certain person, the court properly excluded evidence of illegal or wrongful act® done subsequently by a band with whom defendant was not charged to be in concert or collusion.
    8. Indictment and Information — Limitation of Proof to Charge.— The evidence must be limited to establishing the charge made in the indictment.
    <». Crminal Law — Evidence—Acts and Declarations of Co-Conspirators.- — After the- consummation of the conspiracy, the acts .and declarations of the co-conspirators do not bind each other.
    10. Criminal Law — Evidence—'Competency of Notes Found on Prisoner. — Notes found on accused while confined in jail with other prisoners, and which he attempted to pass to a visitor, and which showed the writers were preparing to arrange for alibis at their trial were competent evidence against him.
    11. Criminal Law. — Trial—Discretion of Court — Separation of Witnesses.- — The exclusion of witnesses from the courtroom is largely a matter of discretion with the trial court, an'd parties who do not desire to suffer by operation of .the rule for the separation of witnesses should exercise some diligence in seeing that their witnesses obey it.
    JAS, BREATHITT, Atty. General and TOM B. McGREGOR, Asst. Atty. General for Commonwealth.
    -SPEIGHT & AGREE for appellees.
   Opinion op the Court by

Judge Barker,

Certifying the Law.'

The grand jury of Calloway county returned an indictment against the appellees, Jake Ellis, Will McClure, and Henry Taylor, charging them with conspiring together for the purpose of intimidating Mose Thornton, which indictment is as follows: ‘ ‘ The grand jury of Calloway county, in the name and by the authority of the Commonwealth- of Kentucky, accuse Jake Ellis, Will McClure, and Henry Taylor of the crime of willfully confederating and banding together for the purpose of intimidating, alarming, and disturbing 'another, committed in the manner land form ■as follows, to-wit: That said Ellis, McClure, and Taylor did in the county and State aforesaid, on the -day of-, 1908, and before .the finding of this indictment, willfully and feloniously and corruptly confederate, agree, -and enter into a conspiracy with each other, and with divers others to the grand jury unknown, for the purpose of intimidating, alarming, and disturbing Mose Thornton, and, in pursuance of said conspiracy theretofore entered into as aforesaid, did then on the-day of March, 1908, willfully and feloniously confederate and band themselves together and with each other, and go forth with said unknown persons for the purpose of intimidating, alarming, and disturbing said Thornton, and they did then and there by arms and threats call him, the said Thornton, out of his house, and order him to raise a crop of tobacco this year, 1908, to his great 'disturbance, intimidation, and alarm, against the peace and dignity of the Commonwealth of Kentucky.” To- this indictment the defendatnts pleaded not guilty, and, the case being called for trial, they demanded 'a severance, whereupon the Commonwealth elected to try Jake Ellis-; and, a jury being impaneled, the case was tried, with the result that the jury were unable to reach a verdict, and was discharged by the court from further consideration of the case. Thereupon the Commonwealth certified to this court the question of the sufficiency of the instructions given by the trial court, and also certain other questions of law concerning the admission and rejection of evidence, and asked a ruling thereon.

Both parties demanded of the trial court that he instruct the jury upon the whole law of the case, and he thereupon instructed the jury as follows:

“(1) The court instructs the jury' that a criminal conspiracy, as charged in the indictment herein, means a corrupt combination or agreement between two or more persons to do by concert of action an unlawful act, or to do a lawful act by unlawful means.
“(2) The court further instructs the jury that, if they believe from the evidence in this case beyond a reasonable doubt that in this county, and before the finding of the indictment herein, the defendant Jake Ellis did unlawfully, willfully, and feloniously conspire and confederate with his codefendants, Will McClure, Henry Taylor, and other persons to the- grand jury unknown, or any one of said codefendants, McClure or Taylor, or with some other person, or persons, to the grand jury unknown, for the purpose of intimidating, alarming, or disturbing the witness Mose Thornton, and, in pursuance of said conspiracy and confederation or banding together, the defendant Jake Ellis, with any one or more of the defendants, Will McClure or Henry Taylor, or with any other person or persons to1 the grand1 jury unknown, acting with him and he with them, did in pursuance of said agreement or confederation go forth for the purpose of alarming, disturbing, or intimidating said Thornton, they will find the defendant guilty as charged in the indictment, and fix Ms punishment at confinement in the State peMtentiary for not less than one year, nor more than five years, in their discretion.
“ (3) The court further says to the jury that, if they believe from the evidence beyond a reasonable doubt that in this county, and before the finding of the indictment herein, the defendant Jake Ellis did unlawfully, -willfully, .and feloniously conspire and confederate with Will McClure, Henry Taylor, or other persons to the grand jury unknown, or with any one or more of them, or with some other person, or persons, to the grand, jury unknown, for the purpose of.¡alarming, intimidating, nr disturbing Mose Thornton and in pursuance and execution of said conspiracy or confederation the codefendants, Will McClure, Henry Taylor, or other person, or persons, to the grand jury unknown, or any one or more of said defendants, or any one or more of said unknown parties with whom defendants did conspire and confederate (if he did so conspire and confederate with any one or more of them), acting in pursuance of said conspiracy or confederation, did unlawfully, willfully, and feloniously go forth for the purpose of intimidating, alarming, and disturbing said Mose Thornton, and shall further believe from the evidence that defendant did not go forth with his codefendants, McClure or Taylor, or either of them, nor with said unknown person, or persons, and was not present, but was absent at the time and place of the going forth, they will find him guilty as charged in the indictment, if they believe from the evidence beyond a reasonable doubt that he did so unlawfully, willfully, and feloniously confederate and conspire with Will McClure, Henry Taylor, or either of them, or with -other person, or persons, to the grand jury unknown, or with any one or more of them for the purpose of alarming, intimidating, or disturbing Mose Thornton, and they will fix his punishment at not less than one year, nor more than five years, in their discretion.
“ (4) The court further says to the jury, if they believe from the evidence that the witnesses J. L. Whit-lock, Clarence Dyzer, W. B. Stewart, land Will Ingram did' willfully, unlawfully, and feloniously conspire or confederate with the defendants, Jake Ellis, Will McClure, Henry Taylor, or any one of them, or with other person, or persons, to the grand jury unknown, for the purpose of intimidating, alarming, or disturbing the said Mose Thornton, then they or such one. or ones of them as did so unlawfully, willfully, and feloniously conspire or confederate for siaid purpose of alarming, intimidating, or disturbing the said Thornton, is an accomplice, or accomplices, in the crime charged in the indictment, and the jury cannot convict the defendant upon the testimony alone of such accomplice, or accomplices, unless same be corroborated by other evidence in tins case tending to connect the defendant Jake Ellis with the crime charged in the indictment, and such corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. But the court further says to the jury that, if they believe from the evidence beyond a reasonable doubt that the witnesses J. L. Whitlock, Clarence Dyzer, W. B. Stewart, and Will Ingram, or any of them, did not .willfully or voluntarily conspire or confederate with the defendants, Jake Ellis, Will McClure, or Henry Taylor, or with any other person or persons to the grand jury unknown, but shall further believe from the evidence beyond a reasonable doubt that they, or any of them, were present at the time and place of such unlawful, willful, and felonious confederation or conspiracy for the purpose of ¡alarming, intimidating, or disturbing said Thornton, and shall further .'believe from the evidence beyond a reasonable .doubt that said witnesses, or any of them, did not willfully and voluntary go forth for the purpose of alarming, intimidating, or disturbing the said Thornton, with said defendants, or any one or more of them, not with siaid unknown person, or persons, or 'any one or more of them, but were forced and compelled against their will to so conspire and to go forth- for the purpose named above, then they or such of them as were so forced or compelled against their will to conspire or confederate with the parties named above, or -any of them, would not be accomplices, and their testimony should be received and considered as the testimony of other witnesses.
“(5) The court further says to the jury that the law presumes the defendant to be innocent until he is proven guilty beyond a reasonable doubt; and, if upon the whole case the jury entertain a reasonable doubt or a reasonable doubt as to any fact necessary to establish his -guilt, then he is entitled to- an acquittal, and the jury should find him not guilty.”

As an exposition of the law of the case we think the foregoing instructions are above criticism; but, on another trial, we suggest that the learned trial judge add to No. 5 an explanation that the facts which would warrant the conviction of the defendant are those so aptly stated in instructions 2 and 3. Ordinarily this precaution would not ’be necessiary; but, as this prosecution is under a statute not often enforced in this State, and as the offense which is charged in the indictment involves the establishment of a multitude of facts ,¡along with which will come unavoidably a vast deal of immaterial matter, we think, as- a matter of ' precaution, lest the jury should be confused, that the suggestion above made be followed.

In the direct examination of the witness Whitlock, he was asked whether or not the person who came t-o see him at the time Ellis said he would have a person there told him to-turn off the switch that night, to which the witness answered, “Yes, sir; he told me to.” The Commonwealth in its brief insists that the court ruled out this question and answer, but we do not so understand it. The record shows that, when the defendant objected to it and moved to'exclude it, the Commonwealth -offered to withdraw the question and answer. ' The motion to exclude the whole of the witness’ (testimony was properly overruled, and we do not understand that the court excluded the question and answer above stated. It was clearly competent, and we see no reason for the withdrawal of it by the Commonwealth. The record, however, leaves us in some doubt as to whether it was withdrawn, although it shows that the Commonwealth offered to withdraw it. The court did exclude a part of an answer by this witness as to- what some one he called “John” told him. As John was not one of the defendants in the case, and there is no evidence that he belonged to the band known as the “Night Riders,” or any explanation as to- who he was, or what -connection he had with the subject-matter under investigation, the court was clearly right in excluding what he said.

The remaining objections of the Commonwealth to the admission and rejection of testimony fall into three classes, ¡and, without alluding to the testimony specifically, we can dispose of the objections by discussing them in a general way in the classes into which they naturally fall.

• The Commonwealth sought to show by several witnesses that other members of the night riders told them that the defendant Jake Ellis was a night rider. All of these declarations were merely hearsay, and were not admissible to show that the defendant belonged to the band of conspirators mentioned. The rule is elementary that, where a defendant is charged with being a conspirator, evidence must be first •shown which, in the absence of contradictory evidence, would establish that he was a member of the band. This evidence may not be direct nr positive in its nature, and it may be made up, as it usually is, of isolated or fragmentary facts and circumstances which, when placed together, establish the guilty connection. When this is done, the defendant is chargeable with legal responsibility for all the acts and declarations of his co-conspirators made during the existence of the conspiracy and in carrying it forward to its unlawful ends. But this is not the question here. Here it was sought to be shown that the defendant belonged to the band of conspirators, by hearsay declarations of the conspirators themselves. This evidence, as said before, is clearly incompetent, and the trial judge correctly excluded it.

The second class of the objections made by the Commonwealth is that the court excluded all evidence of illegal and wrongful acts done subsequent to the outrage perpetrated upon Mose 'Thornton. It will be observed that the indictment charges the defendant with being guilty, with others, of a conspiracy to intimidate Mose Thornton. The 'Charge goes no further than this. It is limited tO' this one •act. Now it would be clearly erroneous to permit evidence of acts- done 'by a band of men with whom the defendant is not even charged as being in concert or collusion. So far as the charge in the indictment is concerned, the object of the conspiracy was consummated in the intimidation of Mose Thornton. The evidence must be limited to establishing the charge made in the indictment. It can take no wider range than the indictment warrants. If the Commonwealth chose to limit the range of the charge against the defendant to the conspiracy to intimidate Mose Thornton, the defendant had a right to believe, and to rely upon that belief, that he would be required to meet only this charge, and to rebut evidence of the Commonwealth against him tending to establish this charge. After the consummation of'the conspiracy the acts and declarations of the co-conspirators do not bind each other. It is only while the conspiracy is in progress of consummation that each conspirator is bound by the acts and declarations of all who are in concert with him to perpetrate the unlawful act. Therefore the trial court was clearly right in excluding all testimony of acts done and declarations made subsequent to the outrage charged in the indictment.

The third objection of the Commonwealth relates to certain notes found on the defendant Ellis while in jail. A. S. Brooks, who held the position of city marshal of Murray, was introduced by the Commonwealth, and testified that he went to the jail with Joe Bell, who ostensibly desired to give Ellis, and certain other prisoners in jail with Mm, some tobacco; that while standing at the window putting the tobacco through the bars, the prisoners ‘ ‘ started to; poke some notes through the bars. Mr. Bell went to take them, and saw me looking at them ,and he dropped his hand by his side, and wouldn’t take them, and they fell on the floor.” Afterward L. W. Holland, a policeman, testified that he searched Jake Ellis while in jail and found the notes in his pocket. The witness had the notes in his possession, and the Commonwealth offered to introduce them in testimony. Upon objection the court ruled them out. They were, however, filed with the stenographer for the purpose of testing their competency in this court. They are las follows:

No.l: “Go to Bud Hall and tell him and Elbert Hall and Bruce Holland to say that me and Bob Duncan was at my home Wednesday night, April the first. (Signed) D. E. Thompson.
“And for Bruce to say the same and say my wife was sick on that night.”
No. 2: “Joe you go to old Wilce Reeds and tell him to swear that I come to his house the night of the 26 of March to rent some land I was gone about 1 hour and ia, half and I got Pan Ellis to stay with Ella & the children while I went down hire and I told them that was going down hire rent some land land they will sware that and I want Reed to sw,ea.r that I was thine on that date & I will come through all right. You press that man dost on that. (Not signed.) ”
No. 3: “Dr. Blaylock and Clay Garland and I want you for witness. You know that you was at my house on that date to see my ba'by 'on the 23rd of March. (Signed) H. C. L.” '
No-, á: “Joe you post father and sister to swear that I was at home on the 23 of March. (Signed) damas m. ”

We think these notes were competent evidence against the defendant Ellis. They tell their own story, and show that the writers were preparing to arrange for the evidence of alibis when their trial came on. We do not' -comment upon their value as evidence; we simply say that they were competent for whatever they are worth as against the defendant upon whose person they were found by the officers of the law.

It is unnecessary for us to- pass upon the action of the trial court in excluding certain evidence which should have been offered in chief, but which was tendered after the defendant’s evidence was in. Upon another trial the Commonwealth can introduce this evidence in the proper order, and it would -serve no good purpose for us to notice the ruling further. The same can be said as to the rulings of the court in excluding the evidence of certain witnesses who had remained in the court room in violation of the rule of the court in ordering a separation of the witnesses. This matter is largely in the discretion of the trial court, and parties who do not desire to suffer by the operation of the rule -should exercise some diligence in seeing that their witnesses obey it. All of which is certified, as by law required, to- the trial court.

Nunn, J.

(dissenting). The only point of difference between myself and Associates grows out of the language of the opinion concerning the letters found in the possession of Ellis. I agree that it was proper to introduce the letters, but am of the opinion that the trial judge should at the time have admonished the jury that they were not to be considered as evidence against him, unless the jury believed that the Commonwealth had by evidence connected him in some way with the writing or composition of the letters, and had reference to the charge laid in the indictment.  