
    [No. 20364.
    In Bank.
    —March 28, 1888.]
    THE PEOPLE, Respondent, v. CHARLES LEY, Appellant.
    Criminal Law—Conspiracy — Circumstantial Evidence. — A conspiracy may be proved by circumstantial evidence.
    Id. — Evidence Showing Conspiracy—Res Gestas.—In a prosecution for an assault to murder, evidence of the acts of an alleged co-conspirator, done before the commission of the crime, and tending to show the probability of an understanding between him and the defendant in regard to its perpetration, are admissible to prove the conspiracy as part of the res gestee.
    
    Id.—Assault to Murder — Conviction of Assault with Deadly Weapon. — A defendant may be convicted of an assault with a deadly weapon under an information charging him with an assault to commit murder.
    Appeal from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      W, A. Gray, and Oregon Sanders, for Appellant.
    
      Attorney-General Johnson, for Respondent.
   Searls, C. J.

The defendant was convicted of an assault with a deadly weapon, upon an information charging him with an assault to commit murder.

The evidence at the trial tended to show that the prosecuting witness Moore, and one Baker, were, on the evening of May 3, 1887, at Tulare, and were desirous of going to Broder’s' ranch, which was in the direction of, but not on the direct road leading from Tulare to, Visalia. One Ward was speaking of going to Visalia, and Moore contracted with him to take him (Moore) and Baker to the ranch in his (Ward’s) buggy. On reaching a point on the road toward Visalia, where the road to the ranch diverged, Ward made some objections to going to the ranch, affecting to believe that it was farther than had been represented, the outcome of which was that the parties agreed to go to Visalia direct. On the way, and after passing the forks of the road, Ward stopped at the house of a Mrs. Bentley, where, leaving Moore and Baker in the buggy, he entered and staid some ten minutes. The defendant and one Ridgeway, arrested with him, were stopping at this house, which was really not on the most direct road to Visalia.

All these things occurred in the night. After leaving the Bentley house, Ward turned from the Visalia road and drove off for perhaps 150 yards, changed his course and affected to be lost, turned back toward the Visalia road, drove a short distance, when his passengers got out of the buggy, and telling them to go up to some trees and he would “ drive on to see,” and would be back in a minute. He did not return, and was not again seen that night. Moore and Baker walked to' the trees, about 150 yards distant, where they met two men, who commanded them to hold up their hands, turn their backs, and give up their money. The robbers had pistols, and threatened to shoot if resisted.

Moore succeeded in getting a knife out, resisted the man who had him more particularly in charge, cut him, knocked him down, and seems to have been in a fair way to conquer, when his antagonist called upon his companion, who came to the rescue, struck Moore with a pistol over the head, and rendered him senseless. Two shots were fired by the would-be robbers,—one by the assailant of Moore, which struck the latter, and the other by Baker’s assailant.

The assault occurred about two o’clock, a. m. Moore recognized Ridgeway, whom he cut, and swore that in size and general appearance the other man resembled defendant.

Ridgeway and defendant were arrested the next morning at the Bentley house, the former wounded by cuts; their pistols were found each with a shot discharged, and that of defendant bloody and broken. The assault was made within a quarter of a mile of the Bentley house, which latter place seems to be about one mile from Visalia.

Bentley and Ridgeway were seen together at Visalia as late as nine, p. m., on the night of the assault, and were usually seen together. Ward was a frequent visitor at the Bentley house.

The foregoing statement contains so much of the testimony as is essential to an understanding of the legal propositions involved in the case.

It is objected here, as it was at the trial, that the declarations, acts, and knowledge of Ward were not admissible in evidence, for the reason that no proper predicate .had been established by showing the existence of a conspiracy between him (defendant) and Ridgeway.

A conspiracy, like most other facts, may be proved by circumstantial evidence. Indeed, it is not often that the direct facts of a common design, which is the essence of a conspiracy, can be proven otherwise than by the establishment of independent facts, bearing more or less remotely upon the main central object, and tending to convince the mind reasonably and logically of the existence of the conspiracy.

In the language of Greenleaf: "If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object.” (3 Greenl. Ev., sec. 93; United States v. Doyle, 6 Saw. 612.)

The evidence to which the defendant’s counsel objects under this head was almost exclusively directed to the establishment of the fact of a conspiracy by the inferential or circumstantial method, and beyond such result had no tendency to convict the defendant.

The details of the agreement with Ward, and of their travels toward Visalia, were well enough to an understanding of the surroundings of the main facts, and as showing the minor facts which led up to and illustrated the former, and thus constituted a part of the res gestee. They were not, however, acts which would or could militate against the defendant, except to show the probability of an understanding between him and Ridgeway on the one hand and Ward on the other, that the latter should afford an opportunity, and the former should embrace it by attempting to rob Moore and Baker.

These acts did not prove or attempt to prove the attempted robbery. That was proven by other and direct evidence as to the fact, and identity of Ridgeway, and by circumstances tending to show defendant as one of the perpetrators.

The acts complained of tended to establish the conspiracy, and were therefore admissible.

There was no error in the withdrawing from the jury of the instruction given inadvertently, to the effect that they must find the defendant guilty of an assault with an intent to commit murder, or acquit him.

Under the information, the defendant could be found guilty of an assault to commit murder, an assault with a deadly weapon, or a9quitted.

The court had already, and in other parts of his charge, instructed the jury fully as to the necessity of being convinced of the guilt of the defendant beyond a reasonable doubt; had explained to them the meaning of a reasonable doubt; and. had covered everything involved in the instruction withdrawn, except as to the various forms of verdict which they were authorized under the information to render.

We need not stop to discuss the propriety of the instruction given by the court below upon the question of an assault to commit murder, for the reason that if conceded to be erroneous (which we do not decide), the defendant, who was convicted of the lesser offense of an assault with a deadly weapon, could not have been injured thereby.

The judgment and order appealed from are affirmed.

McKinstry, J., Temple, J., McFarland, J., Paterson, J., Sharpstein, J., and Thornton, J., concurred.  