Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-21

BILE in evidence against any one of his
confederates in separate trial of the
latter. If not connected with the
deeds of those who actually gave
Snyder his lethal wounds the defen-
dant Caseday did nothing criminal in
itself. Taking the prisoner to the
scene of his death was innocent
enough when considered alone. 1t
therefore became necessary to the
conviction of the defendant to show
that this ostensibly blameless act
was by him made part Of a crimi-
nal scheme in which he and his CO.
defendants, or some of them, partici-
pated with the design to slay Sny-
der. Hence arose the requirement of
proving a conspiracy for that pur-
pOse. Further, If the state would i'm
part |criminality to this apparently
innocent act of the defendant Case
day 1t was important to prove not
only that he thus acted his part in
the tragedy but also that the others
Of the cast, or some of them, per-
formed theirs and to that end any
thing that tended to show the guilt
of any of them was admissible
against him provided it happened
during the existence Of the conspir-
acy. In the presence and hearing of
his brother, Earl, armed with a rifle
having in his possession the car
tridges returned to him by the de-
fendant saying: For Gods sake
amt that enough" Emmett Shields
declared: Il bet you that man never
gets to Canyon" This was surely
admissible against the declarant and
in conjunction with the other evil
dence tending to show guilty confed-
GRAFTON between him and Caseday it
was also competent as against the
latter. This is but an illustration of
other like circumstances disclosed by
the testimony.
1t is contended that some of these
declarations of Caseday's co-defend-
ants were made before there was any
showing of participation on his part
in the alleged conspiracy. This can
not affect the case If in fact Caseday
did participate in the conspiracy and
aided in bringing about the fatal con-
summation. If conspiracy is in
fact formed and progress is made
towards its consummation, when a
defendant actively participates in
such conspiracy he adopts the pre-
vious acts and declarations of his
fellow conspirators In a sense he
finds the conspiracy going concern,
adds his ability to It's criminal capt.
tai and so becomes as much a part
of the enterprise as II he were one Of
its founders. Hence the declarations
Of a fellow conspirator, although
made before defendant joins the law
less association, are admissible in the
trial of any one Of them. Smith "
State, 81 Tex. App. 96; State v. Crab
121 Mo. 554; Sands v. Commonwealth
81 Graft. 871; Keely V. People, So n
Y SIS; Commonwealth v. Waterman
1872 Mass. AZ; Krens V. State, rs Neb
2S4; Barrego v. Territory, 46 Pac
349; Collins v. State, 1873 Ala. 81;
Trevlno v. State, Al s. W. 6O9; vii
kerson v. State. 81 S. W. 956; Mer.
Ger v. State, "a Am. st. Rep. 1876
State v. Dilly, 81 Pac. 1873: State V
Darling, 1879 Mo. 1853
The court refused the following in
struction requested by defendant:
Where a conviction for crimina
offense is sought upon circumstantia
evidence alone, the state must show
beyond a reasonable doubt that tn,
alleged facts and circumstances ar,
true and they must be such facts ant
circumstances as are absolutely in
compatible upon any reasonably
hypothesis with the innocence Of tn
accused and incapable Of explana
ton upon any reasonable hypothesi
other than that of the guilt OF the ac