
    Woolweaver v. The State.
    Homicide— What constitutes an aider and abettor.
    
    1. A person who becomes involved in a fight with one or more antagonists, should not, upon that ground only, be held an aider and abettor of another, who may be present, and incited by the struggle commits an independent act of - violence, that causes the death of the antagonist, or one of them, if there were more than one.
    2. In such case, to constitute the person engaged in the fight, an aider or abettor of the homicide, it should appear, either, that there was a prior conspiracy, or that he purposely incited or encouraged the slayer, or did some overt act himself, with an intent to cause the death of his antagonist.
    (Decided April 25, 1893.)
    Error to the Circuit Court of Vinton county.'
    Plaintiff in error, together with his sons, Henry and Ells-worth, was indicted at the September term, 1891, of the Vinton county Common Pleas Court, for murder in the second degree, in having killed one Frank Rehuían, in said county, on the first day of the preceding August. He was tried at the March term, 1892, of said court,for said offense, convicted of manslaughter and sentenced to imprisonment in the penitentiary of the state for a term of years; which conviction and sentence were sustained by the circuit court of said county. He thereupon instituted proceedings in this court to reverse the judgments of both said courts.
    
      C. H. Grosvenor and J. M. McGillivray for plaintiff in error.
    The error complained of in this action, rests almost altogether upon questions as to the correctness of the charge of the court. Certain charges were asked to be given to the jury in advance of argument, and the only definition of aider, abettor or conspirator, is to be found therein.
    The principal contention is, that the common pleas court erred in eliminating all idea of knowledge, express or implied, and notice, either actual or imputed, as a necessary ingredient in the crime of an aider and abettor, before the fact. It was contended in the court below, that if M. H. Woolweaver was ignorant of any intention on the part of his sou Henry to shoot, and innocent of any intention to get his said son into the trouble, he was not guilty of the killing, however wrong he might have been in attempting to strike E.wingwith a bottle; or, in other words, that it devolved upon the state to show, before a conviction of plaintiff in error could be had, either: 1. That he conspired with his son Henry to commit the crime; or, 2. N ot having previously entered into a conspiracy with Henry, he must, at the time of the killing, have intentionally incited said Henry to shoot. And that in the absence of such showing, there must be an acquittal.
    The court below took an entirely different view, and charged the jury in substance, that if the defendant, on triaj, did any act tending to bring about the result, then he might be found guilty, regardless of the fact that there was no intention on his part to commit the crime, and no knowledge nor notice that his son Henry intended to use weapons dangerous to life.
    The first of the instructions asked— the major portion of which is a copy of the eighth proposition of the syllabus in Goins v. The State, 46 Ohio St., 458—was refused, for the reason that it was claimed to be a mere abstract proposition, in so. far as this case was concerned; and it was said by the learned judge, who delivered the opinion in the case in the circuit court, that it was not applicable, because in this case there was but one combat shown, and there was no independent fight as in the Goins case. Granting such conclusion to be justified (which we do not), and yet the evidence certainly tends to show that defendant was engaged in a fight with Ewing, and not with Eehman, and that so far as defendant was concerned, his actions and Ewing’s were entirely and absolutely independent of Eehman and Henry Woolweaver, although the actions of Eehman and Henry may have been, in some manner, dependent upon the fight with Ewing.
    There being evidence tending to show an independent combat between Ewing and the defendant, the proposition was not abstract, but pertinent, and the defendant was entitled to have the jury instructed upon the question, especially when it is known that his counsel claimed there was no evidence tending to prove any previous conspiracy, agreement or understanding, between the defendant and his son Henry, and no witness testified to any word spoken or act done, in the presence of Henry, tending in any way to show a desire on the part of the defendant on trial, to incite his said son, or any other person to engage in the affray.
    Was the modification of said charge, as asked, material ? This question answers itself—the distinction between doing an act “ with a view” to produce a result, and -one merely “tending” thereto, is as wide as the difference between knowledge and ignorance.
    The next proposition presents the question whether, when two persons are engaged in a combat, and two others interfere, one upon either side, and one of the persons interfering slays the other, either of the persons engaged in the original combat are responsible for, or chargeable with the wrong doing of the person so interfering, in the absence of proof of a combination, agreement, or confederation, from which such act of interference, or killing, or both, might be assumed.
    It was claimed in the courts below, by counsel for the defendant, that the manner of the beginning of the difficulty between defendant and Ewing, could in no manner reflect upon the defendant’s responsibility for the shooting, unless the affray was brought about for the purpose of inducing the shooting, or the shooting was done in pursuance of incitement, encouragement or procurement of the defendant, while engaged in the affraj'-; while on the other hand it was contended that if two engaged in an affray, and another rush upon the scene, and without the knowledge,, consent or procurement of either of the combatants, slay one of them, the survivor is guilty of killing, unless it appear that he was innocent in the bringing about of the difficulty.
    There is no claim that there was any previous agreement, combination or conspiracy in this case, and the evidence offered by the state excludes all idea of such combination,, conspiracy, confederation, or understanding, and shows affirmatively that until the actual commencement of active hostilities, both of defendant’s sons were using their best endeavors to suppress all difficulty.
    If there had been a conspiracy between defendant and his sons to beat Ewing, or do some other unlawful act, not itself liable to produce death, and the killing was done by Henry, without the knowledge or consent of the defendant on trial, he would not be guilty of murder. State v. Furney, 41 Kas., 115; Lusk v. The State, 64 Miss., 845; Kirby v. The State, 23 Tex., App., 13; Williams v. The State, 83 Ala., 16; Spies v. The People, 122 Ill. 1,
    One person is never charged with the wrongful act of another except- such act is the result of conspiracy to do it,, the natural result or probable outgrowth of a conspiracy to do a wrong, or the person sought to be charged is an actual participant in the act itself; and no rule of law can be found wherein one man is charged with the criminal act of another, upon any other theory, or upon the theory that the doing of an act by one person, but for the doing of which another would not have acted, is sufficient to charge the original actor with the crime of the second, in the absence of a showing that the person charged acted with a view and intention to bring about the result.
    The law as to conspirators is based on the fact that a co-conspirator is chargeable with all acts done in pursuance of the common design, and notice and knowledge are fixed upon the party sought to be charged, upon the theory that he gave actual consent to the doing of all things necessary to bring about the desired result, and implied consent to all that might probably or naturally be the outcome of the prosecution of the common purpose.
    The law of conspiracy being based upon the criminal intent to do the act complained of, or to cause it to be done, we insist that no stronger rule should be adopted to govern a case where there is no previous - agreement, no confederation, no common purpose and no concert of action shown. Wharton on Criminal Raw (6th edition, p.-113); State v. King, 2 Rice’s Digest, 106.
    Of course there can be no difference in the encouragement, whether it be by words, actions or what not; so long as it does not amount to a participation there is no criminal liability, for the simple reason that there is neither criminal knowledge, nor criminal intention. And may it not be said that one who encourages the continuance of a wrong per se —a fight, is as much to blame as the person who brings it about, and is yet ignorant of the intention of the third party to kill, and innocent of all desire to cause the slayer to do the act. Wharton Crim. Raw, Sec. 120; Rex v. Cruise, 8 C. & P. 541; Russell on Crimes, 8th Am. Ed., 27, 28.
    In all these authorities the knowledge of the commission of the fact is brought home to the party to be charged, either actually, or as a necessary inference from the proofs, that he was of the party of the wrong doer, and engaged with him in some common wrongful enterprise. The same effect is the charge of the court in the Knapp case, for which see 26 Mass., 518; but in none of them is the principle more clearly stated, nor more forcibly illustrated, than in the Goins case, 46 Ohio St., 518. The underlying and controlling principle in the Goins case is, that one person shall not be charged with the criminal act of another where the proofs do not show the wrongful act was done with the knowledge and assent, either expressed or implied, of the defendant on trial. State v. Hickman, 95 Mo., 322; Lamb v. The People, 96 Ill., 73; White et al. v. The People, 81 Ill., 337; People v. Knapp, 26 Mich., 112.
    In this case there is no proof that the defendant ever consented to the killing of Lehman, much less that he said any word, or did any act, with any idea that Lehman or any one else should, or might be killed. There is not in this record any evidence tending to show that in so far as the killing of Lehman was concerned, the plaintiff in error was guilty of the moral turpitude, suggested by’ Justice Dickey, in the case cited from 81 Ill.
    
      James W. Darby, Prosecuting Attorney, O. W. H. Wright, and R. S. Swepston, for defendant in error.
    It is claimed by counsel for plaintiff in error, that before a conviction can be had in this case the state must show, either: 1. That he conspired with his son Henry to commit the crime; or 2. Not having previously entered into a conspiracy with Henry, he must, at the time of the killing, have intentionally incited said Henry to shoot. Neither of the above propositions is sound law, and we have only to quote from the Goins case, page 467, 46 Ohio St.
    This brings us to the discussion of the subject of aiders and abettors.
    Learned counsel for M. H. Woolweaver seem to contend that he did not aid and abet his son Henry, because no open antecedent declarations were made, in so many words, by him to his son, looking to the commission of this crime. Let us examine the law of aiders and abettors, briefly, and see what acts, declarations, encouragement, etc., are necessary to bind a defendant. Sec. 6804, Revised Statutes. The ■defendant may be indicted as a principal and convicted as an aider and abettor. Hanoff v. State, 37 Ohio St., 179.
    By the above section the prosecution and punishment •of criminals—principals, aiders, abettors and procurers— are placed on the same basis. 2 Circuit Court Reports, 40. Aiders and abettors “are persons who either actually or constructively are present at the commission of an offense, aiding and abetting, or counseling and procuring the same to be done.” Am. and Eng. Ency. of Raw, 1-453; Sec. 211, 9th Ed. Wharton Crim. Raw; Sec. 211a, 9th Ed. Wharton Crim. Raw; Wharton Crim. Law, Sec. 213; Archibald Crim. Law, Sec. 10; Breese v. State, 12 Ohio St., which cites Sec. 460 of Bishop on Crim. Raw; State v. Morgan, 25 Ohio St., 383; Hartshorn v. State, 29 Ohio St., 635; Stevens v. State, 42 Ohio St., 150.
    The objection of Woolweaver’s counsel to the 8th syllabus of Goins v. The State, 46 Ohio St., 458, as given to the jury in a modified form, leads us'to consider the subject of conspiracy. We maintain the charge as requested or given could have been wholly refused as an abstract proposition of law, having no application to the facts in this case; but as the first phrase says: “In the absence of proof of a conspiracy,” etc., we are led to consider if the jury and court below did not have clear proof of a conspiracy. What is a conspiracy in Ohio under our decisions and the general law? The actual fact of conspiracy may be inferred, as has been said, from circumstances, and the concurring conduct of defendant need not 'be directly proved. Any joint action on a material point, or collocation of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the co-operation of any individual conspirator. Wharton’s Crim. Law, Vol. 2, sec. 1398, (9th ed.); 4th Syllabus, Goins v. State, 46 Ohio St., 457; Note 2 of Sec. 1398 of Wharton.
    The Elliot case, recently decided by the Supreme Court of Ohio, and the case of Spies v. The People, the Anarchist case, by the Illinois Supreme Court, each give the courts and juries great latitude in determining, by the circumstances and acts and conduct of the parties, the establishment of conspiracy by circumstantial evidence.
    There is no objection to the charge of the trial court, relative to the law of aiders and abettors, that counsel now-urge in behalf of the plaintiff in error; but insist that the court erred in refusing certain charges asked to be given, explanatory of the charge on the subject of aiders and abettors.
    Ret us examine the charges referred to: The charge, about which the main contentions seem to circle themselves, is taken from the Goins case, 46 Ohio St., 458. On page 471 of that case is found the sixth request from which the 8th clause of the syllabus is taken. The Supreme Court, in passing upon the case, say: “In view of the evidence this charge should have been given;” and in deciding the case, in the same connection, say: “In the case at bar, there was no evidence that the plaintiff in error (Goins) said a word or did an act, at the time the fight began or wTas in progress, that could be construed as aiding or abbetting Harrison in taking the life of the deceased.”
    This case, as to the facts, is entirely different from the Goins case, there being, in the evidence of almost every witness, threats of the plaintiff in error, vile language directed specifically and generally by Woolweaver against the people of McArthur Junction; we find him leading the attack armed with a weapon sufficient to take life; we find him refusing to go home at the solicitation of his boy, .and when the fight is begun, he at once takes a part, and after it is over he sets his seal of approval upon all that was done. He never once offers to prevent the use of dangerous weapons; he never at any time denied but what he intended to do just what was done, “but expressed himself that it was “just right.”
    In the light of the array of facts disclosed by the evidence, is it not an inevitable conclusion that there was conspiracy, that it was one and the same fight, and that there were overt acts showing bej^ond a reasonable doubt a purpose and intention on the part of plaintiff in error to commit the crime of which he was convicted, or one, the commission of which might reasonably lead to and result in the unlawful taking of life, as he was charged? We certainly think no conclusion can be reached but that of guilt.
    Counsel for plaintiff in error, in the case at bar, contend that the error of the trial court, in the charge given, consists in changing the phrase “with a view” to “tending,” and inserting “tending” between “act” and “to,” and then giving the charge thus changed. We again refer the court to the sixth request of the Goins case, page 471, and call attention to the fact that neither of the qualifying terms, “with a view” or “tending” is used; and we think it but little difference which term is used in this connection, and both may be dispensed with, and still it is a good proposition of law, because the expression “overt act” means an act showing or making plain a purpose and intention—an open act done in pursuance and manifestation of a criminal design—See Webster’s Die. and Bouvier R. Die. Such an act could not be other then both “ with a view ” and “tending” to the purpose or result intended; and an act with the purpose makes the crime.
    It is not binding upon the court to adopt the exact language of a higher court, but in charging any proposition of law, language should be varied, in each case, according to the facts to which the law is to be applied.
    It is said, in plaintiff in error’s brief, that the trial court erred in modifying the change asked by the defendant. We think that the court was clearly right in the charge as given; it makes a wide difference in criminal responsibilitj'- which party is the aggressor in an assault.
    If a party unlawfully makes an attack, he must be held responsible for all the criminal acts flowing from such an unlawful act, and if some person, whether he be a son or a stranger, under the incitement occasioned thereby, rush into the conflict and slay the innocent party, the slayer must be considered as adopting all the wrong of the aggressor, and the aggressor, under our statute and general law, would be criminally responsible for the homicide, because brought about in the unlawful act, which he himself has begun. Sharp v. The State, 19 Ohio, 379.
    The case was, also, argued orally, by counsel for plantiff and defendant in error.
   Bradbury, C. J.

Upon the trial of this cause the plaintiff in error excepted to a number of rulings made by the trial court, only one of which we think merits consideration here, namely: the exception taken to the refusal of the court to give to the jury that proposition of law requested by plaintiff in error, which relates to the proof necessary to constitute one an aider and abettor of a homicide occurring upon a sudden quarrel, where the proof is insufficient to establish a prior conspiracy.

Over many of the circumstances that occurred on the day of the homicide, and which led up to it, there seems to have been no substantial controversy. The record discloses that the plaintiff in error resided and kept a saloon at McArthur Junction, a small village located where the track of The Columbus, Hocking Valley and Toledo Railway Compan3'- and that of The Baltimore and Ohio SouthWestern Railroad Company cross each other; that Geo. T. Ewing was the station agent there; that mutual enmity existed between Ewing and the plaintiff in error; that the saloon of plaintiff in error was situated a hundred feet or more from the station buildings; that the plaintiff in error in the early part of the day of the homicide was intoxicated, and continued in that condition until after the homicide occurred, which happened near the middle of the afternoon ; that Ewing was absent from the station most of the day until about one o’clock when he returned; and that during his absence the plaintiff in error came up about the platform and station building, exhibiting special ill-will towards Ewing, and one or two other employes about the station, and ill-will generally towards the rest of them, applying to him and to them vile and abusive epithets, though exhibiting no ill feeling toward the deceased personally.

So far as the record discloses, the plaintiff in error had become 'quiet before the return of Ewing, though for how long before is left uncertain. Ewing, after his return, though how long thereafter is not made quite clear, walked along the station platform to a point nearly opposite the saloon of plaintiff in error, where he and the latter engaged in a quarrel, on the termination of which the plaintiff in error seems to have entered his saloon while Ewing returned to his office. A short interval, fixed by one witness at one hour and twenty minutes, occurred now, during which little, if anything, transpired, unless the plaintiff in error may have occasionally indulged in boisterous language addressed to no one in particular. At the expiration of this period he started from his residence or saloon towards the, station with, a ginger ale bottle in. his hand; he came near the deceased, and they engaged in a sharp and short quarrel, which resulted in the deceased going' to the railroad office, getting Ewing’s revolver, and starting to return towards the plaintiff in'error; Ewing and Uyons, another employe about .the station, took the revolver from the deceased, and all three moved in the direction of the plaintiff in error, who about this time was joined by his two sons and his wife; an encounter followed in which Henry Woolweaver, a son of the plaintiff in error, shot and killed the deceased. There were many other .circumstances. and facts over and about which the parties contested, and which for that reason are unnoticed in the general statement of what seems not to have been controverted.

The plaintiff in error did not fire the fatal shot, and, therefore, if a party to the homicide, became such either because of a prior conspiracy, that made him a party to the act of his son, by reason of inciting or encouraging his son at the time of its commission, or by some overt act of his own, designed or done with a view to bring about that result.

The proposition requested, and which the court declined to give to the jury, reads as follows: “In the absence of a conspiracy, one who is present when • a homicide is committed by another upon a sudden quarrel, or in the heat of passion, is not guilty of aiding and abetting the homicide, although he may become involved in an independent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result, or purposely incites or encourages the principal to do the act ; and so in this case, if you find the defendant on trial, although present at the time of the shooting, knew nothing of his son Henry having a revolver, or intending to shoot, and took no part in the killing, and done no overt act to produce that result, then he is in no way responsible, and must be acquitted, unless you find from the evidence, and beyond a reasonable doubt, that the shot was fired by Henry in pursuance of a conspiracy previously formed by them.”

This proposition the court modified by erasing the words “with a view,” and inserting in their place the word “tending,” so as to make it read “unless he does some overt act tending to produce that result,” and gave it to the jury as thus modified. If there was no prior conspiracy, and the act was committed upon a sudden quarrel, without the plaintiff in error having purposely incited or encouraged the perpetrator thereof, he ought not to be held to have a guilty connection therewith, unless he did some overt act “with a view,”—that is for the purpose—-to produce the result he is charged with aiding and abetting, for in such a state of fact no criminal intent would exist. But, under the rule of law embraced in this proposition, as modified and given to the jury, the plaintiff in error might have been convicted without proof of a guilty purpose, and when he had a casual connection only with the homicide; for it authorized a verdict of guilty if he did any overt act that tended in any degree to cause the death of the deceased, although the act was done by him without any purpose to cause that result, and in fact did not produce it; and although there was neither a previous guilty conspiracy, nor any incitement or encouragement, purposely given, by him, at the time, to the actual perpetrator of the homicide.

Whenever a father engages in a fight, the tendency of that act is to incite a son, who may be standing by, to acts of violence, either towards the immediate antagonist of the father, should there be but one, or towards the party of that antagonist if there should be more than one; this tendency may be affirmed in respect to many other ties of kindred, or in many instances of merely close companionship. What rash or violent act the by-standing son, kinsman or comrade, may be moved to do, depends in a great measure upon the quality of his temper, the strength of his affection, and the notion, often mistaken, that he may hastily gather under the excitement of the moment, as to who is in fault and to be held responsible for bringing on the conflict. And if the by-standing son, other kinsman, or comrade, should, of his own volition, by an independent act of violence, slay the antagonist, the party engaged in the fight should not be charged with this act merely because he was engaged in a conflict with the deceased, and in that way, but in that way only, incited the fatal act. This is not enough to show a criminal intention; something more must appear; he must have purposely incited or encouraged the party in that course of violence that led to the homicide, or done some overt act himself, with a view to that result, and that in some degree contributed thereto. This is the principle that underlies the eighth clause of the syllabus in the case of Goins v. The State, 46 Ohio St. 457.

True, in the Goins case, supra, the plaintiff in error, at the moment of the killing, was engaged in an independent struggle with a person other than the one wht> was killed, but Goins was of the party with the one who gave the fatal stab, and his immediate antagonist was of the party of the one who received the death wound. In the case under consideration, there was evidence tending to show that the plaintiff in error and his two sons, composed one party, while the deceased and Mr. Ewing, and probably Mr. Ryons, composed the other party. • This difference in the circumstances in no wise affected the principles by which the criminal character of the acts of the parties should be tested. If there was a conspiracy, each conspirator was chargeable with the acts of his co-conspirators; if there was no conspiracy, then upon the springing up of a sudden fight, each should be chargeable only with his own acts, and such acts of the others as he may purposely incite or encourage. The charge in the form in which it was requested, correctly stated this proposition.

Where satisfactory proof of a conspiracy has not been produced, it often becomes a nice and difficult matter to determine the criminal liability of each of a party of friends or kindred for the violent and unlawful acts of his fellows, committed in the course of a conflict, arising upon a sudden quarrel, with one or more antagonists.; and in such case, upon the trial of one of them, it is of the first importance that the correct rule of liability should be laid down to the jury; and if the instructions should extend, too far, the liability of the one on .trial for the acts of his fellows, it would be, necessarily, prejudicial to his lights. Therefore, as the proposition, in the form requested by the plaintiff in error, prescribed the correct rule of liability in the absence of proof of a conspiracy, it should have been given to the jury, and any modification that extended the liability, as thus prescribed, must be regarded as erroneous.

Judgment reversed.  