Bisbee daily review., 1907-07-28

of such conspiracy. An act done by a party to unlawful conspiracy and in furtherance thereof, naturally flowing from a common design, is an act of each and all of the conspirators. Andi when murder is committed as the re suit of such conspiracy, each one of the cOnspiratOrs, even though he was not present at the place of crime, if he aided, abetted and encouraged the commission of the unlawful acts re sulting in the crime charged, is guilty.
 If the prosecution failed to prove these facts beyond a reasonable doubt, you should find the defendant not guilty. If, however, you believe that in this case, from the evidence, beyond a reasonable doubt, the de fendant. William D. Haywood, aided abetted, advised and encouraged the killing of Frank Steunenberg, then the defendant is guilty. It would be i'm material whether he was actually present at the time of killing or not. The jury is instructed that the witness Harry Orchard, claims he was an ac- complice in the commission of the of fense charged in the indictment. Under the statutes of this state a person can not be convicted of crime upon the testimony of an accomplice, unless such accomplice is corroborated by other evidence. which of itself, with out the aid of the accomplice, tends toI connect the defendent with the Of fense charged. Co;TobOratiOn is not sufficient if it merely shows the com mission of the offense or the circum- stances thereof. By coTToborative evi- dence is meant additional evidence different in character to the same point
 The law views with distrust the testimony of an accomplice on ac- count of the motive he may have for laying the responsibility of his crime upon another. when by so doing he may secure immunity for his own par ticipation in the crime charged. For this reason the law sXacts such Corro- boration. although the jury may be lieye the testimony of the accOmplice is true. still the jury could not con- vict the defendant upon such testi- mOny unless they further find the testimony of the accOmplice COrrO- borated by other independent evi- dence. This coTrObOrating evidence need not be sufficient of itself to es- tablish the guilt of the defendant. but
 
 cate and connect the defendant with the commission of the crime charged. In order to ascertain whether or not the testimony of the accomplice is cor roborated, as by law it must be be- fore conviction would be warranted. you should eliminate from the case the evidence of the accomplice and exam inc the evidence Of other witnesses. with a view of ascertaining if there be evidence tending TO connect the de fendant with the Offense. If there is, the accomDliCe is cOrrOborated: if there is no inCulDatOry evidence. there l is no cOrrobOratiCn. though the aCcCm- l pliCe may be cOrrObOrated iT regard to any number of facts sworn to by | him. In this case the state relies upon circumstantial evidence 70 establish i the connection of the defendant with ! the conspiracy sought to be proven by | the evidence taken in connection with l the direct testimony of the accom- plice, Harry Orchard.
 Tn order to justify the inference of legal guilt from circumstancial evi- dence, the existing inculpatOTy facts must be absolutely incompatible with the innocence of the accused upon any rational theory and incapa- ble of explanation upon any reasona- ble hypothesis other than that of guilt
 If you believe from the evidence that the witness Orchard was induced or influenced to become a witness and testify in the case by any promise of immunity from prosecution, or pun ishment, or by any hope held out to him that if he testified against the defendant he would not be prescott ed or punished, then the jury should take such facts into consideration in determining the weight which ought to be given to the testimony so ob- tainsd Srch testimony should be re- ceived by the jury with caution and scrutinized with great care.
 And if from the evidence it ap- pears that any favors have been ex- tended by the authorities of the state of Idaho to the witness Harry Or chard, that there is any promise, eith- CT expressed or implied, relating to further favoTs to be received by him. on account of his testimony in the case, then these are proper matters for consideration by the jury as af fecting the credibility of the testi- mony.
 Certain articles have been received in evidence from the Miners Maga- zine for the sole purpose of determin- ing whether or not any motive exist ed on the part of the defendant to par ticipate in the offense charged in the indictment and not for the purpose of establishing in any wise the com mission of any such offense. The hot Hx~ tot utory provision the defendant in a criminal case is made a competent
 witness in his own behalf, where he testifies, as in this case. and becomes the same in all respects as any other witness. His testimony must be test ed by the same rules or tests that are applied to the other witnesses and the jury may take into consideration
 the interest he may have in the case in determining the weight to be given to his testimony.
 'In conclusion you are to determine