be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together. Without such limitation a person might be held responsible for acts which were not the natural or necessary consequences of the enterprise or undertaking in which he was engaged, and which he could not either in fact or in law be deemed to have contemplated or intended. No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand, or by some one acting in concert with him or in furtherance of a common object or purpose. Certainly that cannot be said to be an act of a party, in any just sense, or on any sound legal principle, which is not only not done by him, or by any one with whom he is associated or connected in a common enterprise, or in attempting to accomplish the same end, but is committed by a person who is his direct and immediate adversary, and who is, at the moment when the alleged criminal act is done, actually engaged in opposing and resisting him and his confederates and abettors in the accomplishment of the unlawful object for which they are united. * ** The doctrine contended for, if followed to its legitimate and logical conclusion, would lead to extraordinary consequences. It would render everybody who participated in a transaction, whether acting in concert or in opposition, whether united in a common design or arrayed on opposite sides in a contrast or affray in which each contending party was striving to defeat the purposes of the other, if all acted without legal justification, responsible for every criminal act which was done by any person during the progress of the affair in which they were all engaged. If it was his act at all, then it was committed by him or his confederates while engaged in an unlawful enterprise, and, according to well-settled principles, it would be murder, and not manslaughter. * ** The jury will accordingly be instructed that, unless they are satisfied beyond a reasonable doubt that the deceased was killed by means of a gun or other deadly weapon in the hands of the prisoner, or of one of the rioters with whom he was associated and acting, he is entitled to an acquittal. C. v. Campbell, 7 Allen 541, 83 Am. Dec. 705, F. 167. * * * ** (Tex. Ct. of Crim. App., 1900.) Robbers' Prisoner and Buffer Killed. Appeal from conviction of murder in first degree. HENDERSON, J. Appellant objected to that portion of the charge of the court which instructed the jury, in effect, that if defendant and those with him took deceased, Johnson, in custody, and compelled him to go against his will from the engine to the express car, and that same was a place of danger, where deceased's life was exposed, and that while said Johnson was in such place of danger, and they were attempting to rob the train, and using him. for that purpose, if Buchanan, in resistance to the perpetration of said attempted robbery, in shooting at the robbers, innocently shot and killed Lee Johnson, not intending to kill him, but intending to kill the parties attempting to perpetrate the robbery, defendant and those with him would be as guilty as if they themselves had shot and killed said Lee Johnson. Appellant objected to this charge of the court on the grounds: (1) That the evidence did. not show that defendant and those acting with him placed Johnson in front of the express car to get him shot, but to prevent a shooting; (2) because in front of the express car was not more dangerous than at any other place along the line; (3) because said charge forced the jury to convict, even if they believed that Buchanan killed Johnson, and did not allow them to pass upon that question; (4) it destroyed appellant's innocence, and forced a conviction even if Johnson came to his death by any outside, independent, and unexpected force, by a mere passenger, when he was under no obligation to shoot; (5) it does not give defendant the benefit of a reasonable doubt as to the existence of facts that would not render him guilty if Buchanan killed Johnson; (6) it does not submit the law of murder in the second degree. This presents a novel question and has never, so far as we are advised, been passed upon in this state; nor do we find an analogous case reported elsewhere. Appellant cites us to two cases in support of his contention. C. v. Campbell, 7 Allen 541 [above]; Butler v. P., 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211. Both of these were cases of riot, where * the prosecution attempted to hold the rioters. responsible for the killing by the officers who were opposed to them. If the rioters in said cases had taken the man who was killed, and made a breastwork of him, it would be a different case. We do not understand the doctrine enunciated to apply to a case where the rioters might forcibly make use of another in their design, and cause him to be killed by putting him in a place of danger. Appellant was indicted as a principal; and the allegation made that he shot and killed deceased; and whether he or one of his companions fired the fatal shot, or the shot which killed him was fired by Buchanan in resistance to their attempt, they using appellant as a means to consummate the robbery, the allegation that appellant, as a principal, fired the shot which killed deceased, is equally correct. [Reversed on another ground. Davidson, P. J., filed a concurring opinion.] Taylor v. S., 41 Tex. Cr. App. 564, 55 S. W. 961, Mi. 575. **** # ** (Eng. Queen's Bench, 1882.) Causing Disturbance by OthersSalvation Army March. Question certified on conviction of members of the Salvation Army for unlawful assembly. FIELD, J. The offense charged against them is "unlawfully and tumultuously assembling with others to the disturbance of the public peace, and against the peace, of the queen;" and of course, before they can be convicted upon the charge, clear proof must be adduced. that the specific offense charge has been committed. Now, was that charge sustained? There is no doubt that the appellants did assemble together with other persons in great numbers, but that alone is insufficient. The assembly must be a tumultuous assembly" and "against the peace, in order to render it an unlawful one. But there was nothing, so far as the appellants were concerned, to show that their conduct was in the least degree "tumultuous" or "against the peace. All that they did was to assemble together to walk through the town; and it is admitted by the learned counsel for the respondent, that as regards the appellants themselves, there was no disturbance of the peace, and that their conduct was quiet and peaceable. But then it is argued that, in fact their line of conduct was the same as had on previous similar occasions led to tumultuous and riotous proceedings with stone-throwing and fighting. [&c.] * # But the evidence as set forth in the case shows that, so far from that being the case, the acts and conduct of the appellants caused nothing of the kind, but on the contrary, that the disturbance that did take place was caused entirely by the unlawful and unjustifiable interference of the Skeleton Army, a body of persons opposed to the religious views of the appellants and the Salvation Army, and that but for the opposition and molestation offered to the salvationists by these other persons, no disturbance of any kind would have taken place. The present decision of the justices, however, amounts to this, that a man may be punished for acting lawfully if he knows that his so doing may induce another man to act unlawfully, a proposition without any authority whatever to support it. Under these circumstances, the questions put to us by the justices must be negatively answered, and the order appealed against be discharged. Beatty v. Gillbanks, 15 Cox C. C. 138, L. R. 9 Q. B. D. 308, 51 L. J. m. c. 117, 47 L. T. 194, 31 W. R. 275, 46 J. P. 789, 36 Moak 386, B. 105, Ke. 392. "To the Public at Large.' * § 15. Malicious Injuries. (Pa. Sup. Ct., 1788.) Maliciously Killing a Horse. After conviction on indictment for maliciously killing a horse, defendant moved in arrest of judgment. MCKEAN, C. J. It is true that on the examination of the cases we have not found the line accurately drawn; but it seems to be agreed that whatever amounts to a public wrong may be made the subject of an indictment. The poisoning of chickens, cheating with false dice, fraudulently tearing a promissory note, and many other offenses of a similar description, have heretofore been indicted in Pennsylvania; and 12 Mod. 337, furnishes the case of an indictment for killing a dog,—an animal of far less value than a horse. Breaking windows by throwing stones at them, though a sufficient number of persons were not engaged to render it a riot, and the embezzlement of public moneys, have, likewise, in this state been deemed public wrongs, for which the private sufferer was not alone entitled to redress; and unless, indeed, an indictment would lie, there are some very heinous offenses which might be perpetrated with absolute impunity; since the rules of evidence, in a civil suit, exclude the testimony of the party injured, though the nature of the transaction generally makes it impossible. to produce any other proof. Motion denied. Respublica v. Teischer, 1 Dallas 335, B. 108. (New York Sup. Ct., 1825.) Maliciously Killing a Cow. The defendant was indicted and convicted of "maliciously, wickedly, and wilfully killing a cow," the property of another. Whether this was an indictable offense at common law? WOODWORTH, J. There is no precise line by which indictments for malicious mischief are separated from actions of trespass. Blackstone (4 Com. 243), speaks of the former as done, not animo furandi, or with an intent of gaining by another's loss; but either out of a spirit of wanton cruelty, or black and diabolical revenge. It cannot be expected, that the mere liability to damages, will operate on a mind so depraved. The injury may be committed when none but the person injured is a witness. The perpetrator may be insolvent; and thus gratify his malice with impunity, if there is no redress otherwise than by civil action. This would be contrary to the policy of every well regulated government; which is to protect the citizen in his right, by restraining and punishing the wrongdoer. The offense is distinguishable from an ordinary trespass, in this-that it is not only a violation of private right, without color or pretense, but without the hope or expectation of gain. Such an act discovers a degree of moral turpitude dangerous to society, and, for their security, ought to be punished criminally. It is an evil example of the most pernicious tendency, inasmuch as the act is an outrage upon the principles and feelings of humanity. The direct tendency is a breach of the peace. What more likely to produce it, than wantonly killing, out of mere malice, a useful domestic animal? Affirmed. P. v. Smith, 5 Cowen 258. (New York Sup. Ct., 1848.) Breaking Windows. Error from conviction on plea of not guilty to an indictment charging that defendant below "with force and arms, * unlawfully, wilfully, and maliciously, did break in pieces and destroy two windows in the dwelling house of Moses Cory." The court held that, as no statute touched the case, it depended on the common law; that the words "force and arms" did not import a criminal offense, being mere form used in charges of either civil or criminal wrongs; that malice alone did not make a wrong indictable; that if a tres pass committed secretly, in the night time, or accompanied with cruelty to a domestic animal, be indictable at common law, as has been held in several cases cited, this indictment charges nothing of the kind. Judgment reversed. Kilpatrick v. P., 5 Denio 277, F. 4. § 16. Private Cheats. (Eng. King's Bench, 1720.) Short Delivery. "Wilders, a brewer, was indicted for a cheat in sending in to Mr. Hicks, an ale-house keeper, so many vessels of ale marked as containing such a measure, and writing a letter to Mr. Hicks, assuring him that they did contain that measure, when in fact they did not contain such measure, but so much less, etc. This indictment was quashed on argument, upon motion. R. v. Wilders, stated by Lord Mansfield in R. v. Wheatly, below. MANSFIELD. (Eng. King's Bench, 1761.) Selling 16 Gallons for 18. Defendant was indicted for that, being a common brewer, and intending to defraud Webb, he sold and delivered him sixteen gallons of amber beer for eighteen gallons, and received pay for the same. After conviction defendant moved in arrest of judgment. LORD The offense that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing; so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; for ordinary care and caution is no guard against this. Those cases are much more than mere private injuries; they are public offenses. But here, it is a mere private imposition or deception. No false weights or measures are used, no false tokens given, no conspiracy; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted. 'Tis only a non-performance of his contract, for which non-performance he may bring his action. The selling an unsound horse, as and for a sound one, is not indictable; the buyer should be more upon his guard. DENISON, J. This is nothing more than an action upon the case turned into an indictment. "Tis a private breach of contract. # * * FOSTER, J. We are obliged to follow settled and established rules already fixed by former determinations in cases of the same kind. The case of Rex v. Wilders was a strong case; (too strong, perhaps, for there were false tokens; the vessels were marked as containing a greater quantity than they really did.) WILMOT, J. This matter has been fully settled and established, and upon a reasonable foot. The true distinction that ought to be attended to in all cases of this kind, and * * * * |