Supreme Court. Erie General Term.

November, 1865.

*Grover, Daniels*and *Marvin,*Justices.

#### Charles Carrington, Plaintiff in Error, *v.*The People, Defendants in Error.

All who confederate together for the commission of a felony, and are present aiding and assisting in its perpetration, are, in judgment of law, equally guilty of the felony committed.

Where on a trial for murder there was some evidence tending to show that the prisoner had combined and agreed with others to commit a burglary, and to take the life of any person attempting to prevent the commission of the crime or to arrest them, and that one of the number, other than the prisoner, shot a policeman who was attempting to arrest him, it was held not to be erroneous for the court to refuse to charge “ that there was no evidence in the case which would authorize a conviction,” it being for the jury and not for the court to decide upon the sufficiency of the proof or guilt.

On a trial for murder it is not erroneous for the court to charge the jury that they have a right to take into consideration all the evidence of the case, showing the acts and conduct of the prisoner previous to the commission of the alleged offense as well as the testimony of the witnesses speaking directly to Ms character, for the purpose of determining what his character was.

The prisoner was indicted, tried and convicted of the crime of murder, for killing George Dill, on the morning of the 10th January, 1865, at the house of Mrs. Cooley, on Oak street, in the city of Buffalo. Mrs. Cooley was sworn and examined as a witness upon the trial, and testified that she *329was awakened between two and three o’clock in the morning by a noise at her front door, and then got up and looked out of a window and discovered footmarks in the snow, and a window opened which was closed and fastened when the inmates of the house retired for the night. She then gave the alarm, saying a man was in her house, and in a few moments saw a man pass around by a corner window to the front of her house. Very soon afterwards twoi of the night police were upon the sidewalk in front of the house, and as one was in the act of stooping, to jump over the fence into the lot in which the house stands, the man on the inside fired a pistol shot, the ball from which took effect in the head of the other policeman, producing his death in a very few moments.

Other policemen were brought to the place of the homicide in a few moments afterwards, who followed the footmarks of the man who had stood at the corner of Mrs. Cooley’s house when the pistol was fired, from that point across the block to Ellicott street, and down that street to near the lower end of the block, where they found the tracks passed into the dwelling known as No. 99 Ellicott street.

The prisoner was soon afterwards arrested. In the meantime his clothing had been partially changed. Upon finding the clothing the prisoner had taken from his person, the lower portion of his pants and his boots proved to be wet. One of his boots was then tried in the tracks found in the snow, which was wet and upwards of a foot deep, and found to correspond with them exactly.

Other evidence was given of the conduct and conversation of the prisoner at the time of his arrest, tending to establish the fact of his identity with, the man who fired the pistol from' the corner oi Mrs. Cooley’s house. A pistol with a single barrel was found in one of the pockets of the prisoner, but it was not of the proper calibre to carry the ball found in the head of the policeman,, and which, caused his death.

*330
      *Hattie Robinson*was sworn and examined as a witness for the prosecution, and in the course of her evidence testified: “ I saw the prisoner at Rose White’s the night Dill was killed; there were two men with him, one of whom I knew; I have seen the man since; Givens was one of the party; they were there after two o’clock; it was a house of ill fame.

*Louisa*Lecher, another witness for the prosecution, testified that she saw the prisoner at Gillig’s Hall, between ten and twelve on the night in question.

*Mary Hale,*a witness for the prosecution, testified: “I was at Dell Davis’s, and saw the prisoner on the night of the murder; I saw him January 10, between eleven and twelve; there were two others with him; one of them I saw here as a witness on the other trial; they came in and wanted some ale; I gave them none because I thought they had no money; Charley wanted me to change a ten-dollar bill; he took out a handkerchief and a pistol, or revolver, which he pointed at me, and said they wanted the ale; they said they were going to take the rounds and go to *Mrs. Cooley's*and Miss Ballon’s, and asked where the girls were; I said at Gillig’s Hall; they said they' guessed they would go around there; three of our girls were gone; I was in a house' of ill-fame.”

*Frances McDowell,*a witness for the prosecution, testified: “I lived at Em. Snow’s in January last, and have seen defendant there often. He was there the night of the murder. Givens and he were ■ there about twelve o’clock, and a second time about two o’clock that night. I think the second time was between one and two; there were three of them both times. I was at a house of ill-fame.”

It also appeared that Mrs. Cooley’s house was a house of ill-fame.

*Levi 8. Givens*was sworn and examined as a witness for the prisoner. The material portions pf his testimony are *331as follows: “ I remember the night of the murder; I saw the prisoner on that night from seven or eight o’clock in the evening' until nearly three in the morning; I left him ■ at the corner of Ellicott and Huron streets; I went home to the corner of Main and Genesee streets, and went to bed; Mrs. Auld lived at 99 Ellicott street. After I left prisoner, I saw him until he was nearly home, to the next block this side of No. 99. We‘were at the beer gardens at eighteen or twenty minutes to three; went from there to Em. Roe’s; I heard the clock strike three as I got into bed; Skidmore and the prisoner went down Ellicott together, and I supposed he was going to stay with Charley.”

On his cross-examination he testified: “We were all three to meet at Fox’s billiard saloon; I got supper at Mrs. Auld’s. When we went to play billiards, the tables were full, so we went to Carr’s Melodeon; we stayed there, I should think, half an hour; from there we went to Fox’s again and stayed until nearly ten o’clock, I should think, or, in fact, nearly eleven; then we all came up and stopped at a saloon somewhere, I can’t tell exactly where, where we drank some beer; this was after eleven o’clock; then we went to Em. Snow’s, where we had a bottle of ale and remained fifteen or twenty minutes; after which we left for Rose White’s, stayed there perhaps for ten minutes and then went to Gillig’s Hall; in' going, we stopped at Dell Davis’ instead of Rose White’s; when we left Gillig’s we came to Rose White’s and saw one or two girls besides Rose, one of whom was Mary Hall; here we had a glass of beer and a sandwich; from there we went to Genesee street, to the beer garden, between Genesee and Huron or Washington, and from there to Em. Roe’s, and from there to the corner of Huron and Ellicott streets. I did not have a pistol on that night; I had a revolver with me when I went home, and left it at home after that; I owed Robert Auld, and gave him the revolver.”

*332
      *Robert Avid,*a witness for the defence, testified: “ I know the prisoner and Givens; the latter boarded at my father’s and I saw him on the morning of the 10th; he came in about three; I asked him what time it was, and he said a little after three.”

On cross-examination he said: “ Givens gave me a revolver, which I let Mr. Burt take; I don’t know whether there were five or six loads in the revolver; there was one gone when I got the revolver the next morning.”

On a subsequent examination he states that he received the pistol a day or two after the murder.

*James Auld*was sworn and testified that the prisoner entered the house where he was arrested about three o’clock in the morning, and that on the night before Skid-more slept with him.

*Patrick Smith*was sworn and examined on the part of the prosecution, and was shown the pistol produced by Mr. Burt, and the hall taken from the head of the policeman.- He said: “I should think that if this cartridge was in shape it could be used in this revolver; it is the right sized hall for this pistol.”

*John*Mittler, the policeman who was with Dill when he was killed, testified: “ I went down Ellicott and found another track a little below on Ellicott, near Batavia; this was a larger track than that through Cooley’s yard, or through the vacant lot.”

*John Swartz,*another policeman, testified: “ I was sent down towards Batavia street; found a big track coming from the street to the sidewalk; I followed this track on Batavia street.”

*Michael Hoffman,*who was sworn and examined on the part of the prosecution, testified: “ I found Dill dead, and was sent for the doctor; I went to Dr. Weiss, on Batavia street, between Ellicott and Oak; while I was there I saw a man coming down Ellicott, in the middle of the street, who crossed Batavia to Sargent’s, rapped on the door, and *333said he wanted to come in; he went off up Batavia to the Park.”

*Charlotte Sargent*testified: “I remember the night that Dill was killed; I lived at lío. 17 Batavia street; a man called at my house that night; he was swearing; this was between two and three o’clock in the morning; my house was searched in about fifteen minutes after the man left my door; it was not Carrington.”

It was also shown that Givens’ boot was longer and wider than the prisoner’s.

The prisoner’s counsel moved to strike this evidence out. The motion was denied and an exception taken. The counsel for the prisoner also objected to the evidence given by the witness Kobert Auld, that Givens gave him a revolver which he let Burt take, and excepted to the ruling of the court allowing the evidence. Further evidence was given upon the trial for the purpose of proving that the prisoner sustained a good character.

The Court charged the jury that they had a right to take into consideration all the evidence in the case, showing the acts and conduct of the prisoner previous to the commission of the alleged offense, as well as the testimony of the witnesses speaking directly to his character, in determining what his character was. To which the prisoner’s counsel excepted.

The Court also charged the jury that if two or more persons combined to commit a burglary and armed themselves with pistols, agreeing with each other that they would kill any one endeavoring to prevent or obstruct them in committing the crime, or attempting or endeavoring to arrest them while engaged in its perpetration, and, while so engaged, any one of them should murder a person endeavoring to arrest them, all who had so agreed and combined, and were personally present, aiding and assisting the person killing the deceased, would be guilty of murder. To which the- counsel for the prisoner ex*334cepted. His counsel also requested the court to charge that there was no evidence in this case that would authorize a conviction of the prisoner upon the ground that he had combined with others to commit the crime, or upon the ground of the joint commission of the offense by the prisoner and other persons. The court refused and the prisoner’s counsel excepted.

From the judgment entered on the verdict a writ of error was brought on behalf of the prisoner.

*G.*Parsons, for prisoner.

*C. C. Torrance*(District Attorney), for the people.

*By the*Court, Daniels, J.:

No question was made upon the argument of this cause but what the general proposition contained in the charge, that all who confederated together for the commission of a felony, and were present aiding and assisting in its perpetration, were in judgment of law equally guilty of the felony committed.

But it was earnestly maintained that the evidence in this case would not, in any view of it, bring it within the application of that principle, and that it was error therefore in the court to withhold the instruction requested from the jury. If they believed—as it will appear from the extended statement already given of the evidence they very well might have done—that the pistol was fired by the hand of the prisoner, then the proposition involved in the request to charge would be of no practical consequence in the case; for if he was the person who did fire it, the offense committed by doing so would be precisely the same whether he acted alone or in concert with others who were present to render him aid and assistance. His crime would be murder in either case, if he intended to produce the death of the person who was shot. In order to reach that conclusion the jury would of necessity have to be satisfied that the prisoner had the possession at that time, and used, *335the revolver afterwards found with Givens; for the pistol found with the prisoner was shown to be incapable of discharging the ball. But as the evidence stood upon the trial, there would not seem to be any great difficulty in arriving at the presumption that the prisoner did use this revolver, and found ready means at hand to transfer it to Givens, which he would naturally be disposed to do in order to avoid as far as possible all direct indications of his guilt.

If, however, the jury were not satisfied that he used the revolver, then it would be an important inquiry in the case whether any other person did who was acting in concert with him. And it is in view of that contingency that the question raised by the request to charge becomes important. The court would not be justified in giving the instruction to the jury, which the request required, unless there was such an entire absence of evidence before them as to leave no ground for discussion or deliberation upon the subject. It is a familiar principle in our jurisprudence, that the jury shall determine all questions of fact presented in the controversy submitted to their deliberation, even though the evidence upon which they arise may be slight and in a great measure unsatisfactory. The law regards the court as possessing no superior qualifications over the jury for the determination of mere questions of fact.

The principal evidence in the case tending to show that the homicide in question was committed by some person with whom the prisoner acted in concert, and who was aided and abetted in the aet'by him, is that which shows that the prisoner Skidmore and Givens were together by appointment on the night when it happened. And after they came together they attended places of amusement and entertainment, drank together, and visited various houses of ill-fame, and in that manner reached the portion of the night when, if at all, the crime afterwards *336committed could be committed with a strong probability that its perpetrators would escape detection. Their con duct during the previous portion of the night was jus such as would ordinarily be expected from persons who contemplated some offense upon the person or property of another. And in the course of their wanderings they are sworn to have announced their intention to visit the house where the crime was soon afterwards committed. Whether they made such a statement or not was of course a question for the jury. If they did, it would indicate the probability that they did not separate, as Givens said they did, on the corner of Huron and Ellicott streets, which was the opposite side of the block from Mrs. Cooley’s house, but that they continued together until they reached her house. The same probability is increased by Givens’ possession of the revolver, the circumstance that one cartridge had been discharged from it, and that he very soon afterwards was anxious to divest himself of. it, and actually did transfer it to the possession of another person. And added to that is the fact that some person other than the prisoner was discovered very soon after the homicide on the other side of the block, who passed down Batavia street and was then seen running and endeavoring to secure shelter or concealment in a house very near at hand. Besides, it may well be asked, why were these three persons together on the corner in the immediate vicinity of the place where the homicide was committed, concededly, within a very few minutes before its perpetration ? Eor if it had been afterwards, they would have heard and known something of it, and probably have been seen and identified by some members of „the police force who were on their way to the place where the crime was committed, and in search of its perpetrators. Then, again, if they contemplated no outrage on the property or person of any other, no explanation is given of their conduct in arming themselves with and *337carrying along with them the deadly weapons found to have been in their possession. A rational explanation of that circumstance would be that they were intended for use, by way of assault or defense, as either might become necessary to overcome resistance or secure escape. A jury most certainly would be at liberty to attribute such an intention to these persons on the night in question. When all these circumstances are considered together, it must become obvious to every one that the evidence in the case was of such a character as to render the instruction requested manifestly improper.

The evidence showing that Givens had a larger foot than the prisoner, tended in 'some degree to show that he might have been the person seen upon Ellicott and Batavia streets, who sought admittance into the house of Mrs. Sargent. Every circumstance, however slight, which had a tendency to connect him as a principal with the homicide, was proper to be submitted to the consideration of the jury; for if they were not satisfied that the prisoner himself inflicted the mortal wound, the inquiry was very naturally suggested by the circumstances, whether Givens did not do it, in compliance with a common understanding or purpose existing between him and the prisoner, and in the presence, actual or constructive, of the latter. In cases of this nature, where the prosecution is more dependent upon circumstances to make out the case than perhaps in any others, nothing should be withheld from the jury that in any reasonable view will aid in the development of the transaction. If it could have no effect in that direction, then it was so entirely immaterial as to be incapable of producing any injury whatever to the prisoner.

As to the evidence which was given showing the disposition made of the pistol, which was proved to be capable of discharging the ball that was used, it was so clearly pertinent that no time will be consumed in its consideration.

The remaining exception was taken to the charge of the *338court respecting the evidence of character. The prisoner’s counsel is quite right in saying that the circumstances proved upon the trial which exhibited. the prisoner’s conduct, associations and habits on the night in question, could not have been given in evidence for the mere purpose of affecting his' character. But they were material as evidence in other respects, having a bearing upon the probability of the prisoner’s guilt, and as such were entitled to the consideration of the jury. Their full bearing in that respect could not be very well given to them without bringing them directly in conflict with the evidence of the prisoner’s character; and so far as that was the case, they would very much weaken the effect of that evidence in the consideration of the jury. But that species of evidence is always liable to be overcome in the same manner in every case where it is given. The circumstances proved to establish the guilt of the accused in every case affect his character; and where they clearly indicate guilt, their effect is so great that proof of good character is of little or no consequence. In all these cases the circumstances could not be proved for the mere purpose of affecting the character of the accused. But they are of the very gist of the issue, and as such the accused must be prepared to meet them; and when thus proved, the jury may very properly give such effect to them, in all respects, as in any view of the evidence they are legitimately entitled to. Evidence of character is always given for the purpose of leading the jury to doubt the effect which the other circumstances proved would otherwise be likely to have upon their minds; and, as such, it must be considered with those circumstances, and where they are of such a character as entirely to overthrow it, that evidence can have no effect at all. Whenever it is given, it must be considered, not by itself, but in view of all the other facts and circumstances appearing in the proof.

The judgment should be affirmed.