The Birmingham age-herald., 1907-07-28

connection had been made in either case.
 Instructions as to the necessity for clear and conclusive proof beyond any reason able doubt of every material fact were followed by the quoting of the indictment on. which Haywood, together with Mover and Pettibone, was arrested On this sub ject, Judge Wood said:
 "There are three counts in the indiet- ment but the substance of each of them is the unlawful, wilful, deliberate. pre- meditated and felonlous killing of the said Frank Steunenberg with a malice afore- thought. The essential elements of the offense charged in the indictment con sist of the following features:
 Six Elements of Offense.
 First there must have been a killing; second. that killing must have been un- laW>ll. third, 1t must have been wilfui; fourth, it must have been deliberated upon fifth. it must have been premedi- tatel: sixth 1t must have been accom- panied by malice in the mind of the pei son or persons doing the killing, and un- less the features, and each and every one of them, are proven to your satisfac- ton beyond a reasonable doubt, then the defendant cannot in any event be con victed of murder in the first degree.'
 The language of the statute is given as to murder in. the first and second degree as voluntary and involuntary man slaughter.
 Continuing, Judge Wood said "The court nstructs the jury that under she law no jury should convict a citizen of crime simply because there is strong req son to believe that he is guilty; but be- fore the jury can lawfully convict they must be convinced Of the defendants Sult beyond all reasonable doubt
 "If it is possible for you to reconcile the facts in this case upon any reason- able theory consistent with the innocence Of the defendant, William D. Haywood 1t is your duty to do so and find the defend- ant not guilty
 Proving a Conspiracy.
 'T further instruct you, gentlemen of the jury that while proof has been adduced of the commission of other crimes by the defendant and his associates, and tendingS to prove the admission of such of other crimes by them, that it has only been ad- mitted for the purpose of showing the 1 existence of conspiracy to accomplish certain objects, and that such crimes and | the crime resulting in the death of ex- 1 Governor Steunenberg as well, were all in cldents of such conspiracy; but you must rea hGe '2gst PoT the s1 murder s of FSsn steunen berg, and for that crime lae. But you ] are privileged 10 take such >ther matters l into consideration as part of the evidence 1 in the case and as incidents and creum- stances bearing upon the question of his 1 guilt upon the charge of the murder of | Steunenberg.
 Ut makes no difference, however, in this | case what crimes have been committed | in Colorado, in the Occur D'Alenes or | elsewhere, or who is responsible for the | commission of such crimes, If any there 1 be- The defendant cannot be convicted unless the state has established beyond a | reasonable doubt that he Is guilty of the folonious killing of Steunenberg | "A conspiracy within the meaning of | the criminal law consists of combina- l tion of two or more persons for the pur- | pose of accomplishing a criminal or ur- 1 lawful object or a lawful object in an unlawful manner. As applied to this case | and under this indictment, proof of con spiracy is only proper Is so far as It may tend to show a common design to en- courage the particular murder cause | charged against the defendant, and It can only be introduced for the purpose and establishing the position of the members of the combine as accessories to the crime | of murder.
 Crisis of Conspiracy.
 "Tt Is not essential to the formation | of that conspiracy that there should be a formal agreement between the parties to do the act charged. It is sufficient If the minds of the parties meet under standlngly, so as to bring about an in | telllgent and deliberate agreement to do such acts and commit the crimes charged, although such agreement be no manifes- | tation by any formal words. con- epiracy in the first instance may be es- tablisned by evidence having no rela- | ton to the defendant, by acts of different persons at different times and places, or 1 by any other circumstances which prove 4G emf prove beyond a reasonable doubt that such a conspiracy existed at the time of the commission of the unlawful act | and that the defendant on trial was member of such conspiracy. An act done | by a party to an unlawful conspiracy in furtheranoe thereof and naturally flow ing from the common design, Is the act of each and all of the oonspirators. And where murder Is committed as the re- suit of such a conspiracy. each one of the consprators. even though he was l not present at the place of the crime, l is guilty If he aided, abetted and en- couraged the commission of the unlaw- full acts resulting fin the crime charged.
 Must Be No Doubt.
 'If the prosecution has failed to prove | these facts beyond a reasonable doubt, you should find the defendant not guilty. | If however, you believe in this case from | the evidence beyond a reasonable doubt, 1 that the defendant William D. Hay wood, aided abetted, advised and en- couraged the killing of Frank Steunen- | berg, then the defendant is guilty, and | 1t would be immaterial whether he was actually present at the time of the kill ing or not.
 "The Jury Is instructed that the wit ness. Harry Orchard, claims that he was an acoomplice in the commission of the offense charged In the indictment. Under the statute of this state a person can | not be convicted of a crime upon the testimony of an accomplice unless such 1 accomplice Is corroborated by other evil dence, which of Itself and without the | aid of the testimony of accomploes, tends to connect the defendant with the commission of the offense charged and l the corroboration is not sufficient if 1t 1 merely shows the commission of the offense or the circumstance thereof
 By corroborative evidence is meant dd- ditionaI evidence of a different character to the same point.
 Testimony of Accomplice.
 'The law views with distrust the testi- | mony of an accomplce on account of the motive he may have for laying the responsibility of his crime upon another, when by so doing he may secure inl- munity for his own participation in the crime charged. For this reason the law exacts such corroboration and although the jury may believe that the testimony of an accomplice is true, still the jury codld not convict the defendant upon such testimony unless they further ind