Mr. Justice Mulkey
delivered the opinion of the Court:
It appears from the record in this case, that on the evening of the fourth of October, 1878, the store of E. S. Jaffray & Co., situate on Fifth avenue, between Madison and Washington streets, Chicago, was broken and entered by burglars, and that they stole and removed therefrom a considerable quantity of merchandise. In pursuance of an arrangement between some, or all the parties, this merchandise was taken about ten o’clock of the same night, in an express wagon procured for that purpose, to a building on State street, kept as a paAvnshop, by one Friedberg and Avife. On the arrival of the xragon in front of this shop, and while the parties were in the act of removing the goods out of the Avagon into the shop, the deceased came up to the wagon and was almost instantly thereafter shot, by some one at or near the wagon, receiving a mortal wound in the neck, from which he died in a few moments.
Inasmuch as in the view we have taken of this case it will have to be submitted to another jury, it Avould not be proper to express any opinion on its, merits, or with respect to the effect of the testimony, except so far as may be necessary to present the grounds upon which the judgment of the court below is reversed.
As a part of the theory of the defence in the court below, it was claimed by the accused that, conceding he was one of the conspirators in the burglary and scheme for concealing and disposing of the stolen goods, still the evidence failed to show that he was present at the time of the homicide, or that he had in any manner advised or encouraged it, and that inasmuch as the plan or scheme of disposing of the stolen property adopted by the conspirators did not necessarily or probably involve the taking of life, and that as there Avas no evidence whatever tending to show that there was any tacif or express agreement between them to take life in any contingency in the prosecution of the enterprise, the accused could not be legally held responsible for the homicide in question.
To support this theory of the case the counsel for accused introduced and examined a number of Avitnesses, and while we express no opinion as to the Aveight of the evidence upon this branch of the case, it is sufficient to say that it can not be denied that the testimony of these Avitnesses did tend to prove that the accused was not present at the time of the homicide, and the evidence Avas sufficiently strong in that direction to entitle the accused to proper instructions embodying the laAV based upon that hypothesis. And with this view counsel for plaintiff in error asked the court to give the jury this instruction, which is the 6th in the series prepared by counsel for plaintiff in error:
“If the jury believe, from the evidence, that the homicide charged in the indictment was committed by one of the several burglars, while engaged in secreting or disposing of property which said burglars had previously stolen, and that the killing was done to prevent the discovery and seizure of said property by the person killed, then, unless the jury believe from the evidence, beyond all reasonable doubt, that the defendant was present at the homicide, or sufficiently near to render aid and assistance to the perpetrator, and actually did aid, abet or encourage the person who committed the homicide; or unless the jury shall find that the defendant, before the homicide, counseled or advised the persons in charge of the said goods to oppose and resist whosoever should attempt to seize said goods, or interrupt them in the secreting or disposing of said goods, and that the killing of the deceased occurred in the course of such resistance as the defendant had so counseled and advised, then they ought to acquit the defendant.”
The court refused to give this instruction, and all others embodying the same principle; but on the other hand gave instructions for the People which wholly ignored the principle therein announced. And this, we are of opinion, was error.
If, in point of fact, the accused was not present at the homicide, and had neither aided nor abetted, advised or encouraged its perpetration; nor had before its commission advised the persons in charge of the stolen goods to oppose and resist all persons who should attempt to seize the same, or interrupt them in secreting or disposing of them, as is assumed by the instruction, upon what principle could a conviction be sustained ?
It may be stated as a general proposition, that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right, and shocking to every sense of justice and humanity.
Where the accused is present and commits a crime with his own hands, or aids and abets another in its commission, he may, in either case, be considered as expressly assenting thereto. So, where he has entered into a conspiracy with others to commit a felony or other crime, under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go. For if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of sj|ch a character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability.
It will be perceived from what we have stated, that, assuming the facts mentioned in the 6th instruction to be true, and so we must regard them for the present purpose, it follows that the criminal liability of the accused in this case turns altogether upon whether the agreement between the conspirators to conceal and dispose of the stolen ’goods at the time, place, and in the manner proposed, constituted an enterprise of.such dangerous character as to render the unlawful taking of life probably necessary in carrying it into execution.
We are of opinion, as already indicated, that it did not. When all the elements which enter into the question are considered, it would seem there is scarcely any room for doubt upon this question.
If Freeman, upon whose testimony the prosecution mainly rests, is to be believed, Friedberg and wife were fully advised of the proposed burglary, and knew, if the enterprise was successful, whatever was taken from the store would be brought to their pawn shop, on State street, for disposition. It was therefore reasonable to suppose that Friedberg and wife would be in readiness to receive without delay or hindrance whatever goods might be brought there, and that they would take every precaution to prevent surprise or danger. The place of deposit, a pawn shop, was least of all others calculated to attract notice or comment by reason of unloading goods in front of it. The night was very dark and altogether favorable to the execution of an enterprise of that kind. Indeed, Avhen -all the circumstances are considered in connection, they would seem to exclude all probability of force and violence becoming necessary in carrying into execution the arrangement agreed upon.
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Mr. Justice Mulkey
delivered the opinion of the Court:
It appears from the record in this case, that on the evening of the fourth of October, 1878, the store of E. S. Jaffray & Co., situate on Fifth avenue, between Madison and Washington streets, Chicago, was broken and entered by burglars, and that they stole and removed therefrom a considerable quantity of merchandise. In pursuance of an arrangement between some, or all the parties, this merchandise was taken about ten o’clock of the same night, in an express wagon procured for that purpose, to a building on State street, kept as a paAvnshop, by one Friedberg and Avife. On the arrival of the xragon in front of this shop, and while the parties were in the act of removing the goods out of the Avagon into the shop, the deceased came up to the wagon and was almost instantly thereafter shot, by some one at or near the wagon, receiving a mortal wound in the neck, from which he died in a few moments.
Inasmuch as in the view we have taken of this case it will have to be submitted to another jury, it Avould not be proper to express any opinion on its, merits, or with respect to the effect of the testimony, except so far as may be necessary to present the grounds upon which the judgment of the court below is reversed.
As a part of the theory of the defence in the court below, it was claimed by the accused that, conceding he was one of the conspirators in the burglary and scheme for concealing and disposing of the stolen goods, still the evidence failed to show that he was present at the time of the homicide, or that he had in any manner advised or encouraged it, and that inasmuch as the plan or scheme of disposing of the stolen property adopted by the conspirators did not necessarily or probably involve the taking of life, and that as there Avas no evidence whatever tending to show that there was any tacif or express agreement between them to take life in any contingency in the prosecution of the enterprise, the accused could not be legally held responsible for the homicide in question.
To support this theory of the case the counsel for accused introduced and examined a number of Avitnesses, and while we express no opinion as to the Aveight of the evidence upon this branch of the case, it is sufficient to say that it can not be denied that the testimony of these Avitnesses did tend to prove that the accused was not present at the time of the homicide, and the evidence Avas sufficiently strong in that direction to entitle the accused to proper instructions embodying the laAV based upon that hypothesis. And with this view counsel for plaintiff in error asked the court to give the jury this instruction, which is the 6th in the series prepared by counsel for plaintiff in error:
“If the jury believe, from the evidence, that the homicide charged in the indictment was committed by one of the several burglars, while engaged in secreting or disposing of property which said burglars had previously stolen, and that the killing was done to prevent the discovery and seizure of said property by the person killed, then, unless the jury believe from the evidence, beyond all reasonable doubt, that the defendant was present at the homicide, or sufficiently near to render aid and assistance to the perpetrator, and actually did aid, abet or encourage the person who committed the homicide; or unless the jury shall find that the defendant, before the homicide, counseled or advised the persons in charge of the said goods to oppose and resist whosoever should attempt to seize said goods, or interrupt them in the secreting or disposing of said goods, and that the killing of the deceased occurred in the course of such resistance as the defendant had so counseled and advised, then they ought to acquit the defendant.”
The court refused to give this instruction, and all others embodying the same principle; but on the other hand gave instructions for the People which wholly ignored the principle therein announced. And this, we are of opinion, was error.
If, in point of fact, the accused was not present at the homicide, and had neither aided nor abetted, advised or encouraged its perpetration; nor had before its commission advised the persons in charge of the stolen goods to oppose and resist all persons who should attempt to seize the same, or interrupt them in secreting or disposing of them, as is assumed by the instruction, upon what principle could a conviction be sustained ?
It may be stated as a general proposition, that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. To hold otherwise would be contrary to natural right, and shocking to every sense of justice and humanity.
Where the accused is present and commits a crime with his own hands, or aids and abets another in its commission, he may, in either case, be considered as expressly assenting thereto. So, where he has entered into a conspiracy with others to commit a felony or other crime, under such circumstances as will, when tested by experience, probably result in the unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go. For if the accused in such case has not expressly assented to the commission of the crime, and the unlawful enterprise is not of sj|ch a character as will probably involve the necessity of taking life in carrying it into execution, there can be no implied assent, and consequently no criminal liability.
It will be perceived from what we have stated, that, assuming the facts mentioned in the 6th instruction to be true, and so we must regard them for the present purpose, it follows that the criminal liability of the accused in this case turns altogether upon whether the agreement between the conspirators to conceal and dispose of the stolen ’goods at the time, place, and in the manner proposed, constituted an enterprise of.such dangerous character as to render the unlawful taking of life probably necessary in carrying it into execution.
We are of opinion, as already indicated, that it did not. When all the elements which enter into the question are considered, it would seem there is scarcely any room for doubt upon this question.
If Freeman, upon whose testimony the prosecution mainly rests, is to be believed, Friedberg and wife were fully advised of the proposed burglary, and knew, if the enterprise was successful, whatever was taken from the store would be brought to their pawn shop, on State street, for disposition. It was therefore reasonable to suppose that Friedberg and wife would be in readiness to receive without delay or hindrance whatever goods might be brought there, and that they would take every precaution to prevent surprise or danger. The place of deposit, a pawn shop, was least of all others calculated to attract notice or comment by reason of unloading goods in front of it. The night was very dark and altogether favorable to the execution of an enterprise of that kind. Indeed, Avhen -all the circumstances are considered in connection, they would seem to exclude all probability of force and violence becoming necessary in carrying into execution the arrangement agreed upon. This being so, it would be manifestly unjust to hold the accused liable for an act done by another Avhich he had never in any sense, either expressly or impliedly, assented to.
The principle which underlies and controls cases of this character is the elementary and very familiar doctrine, applicable alike to crimes and mere civil injuries, that every person must be presumed to intend, and is accordingly held responsible for the probable consequences of his own acts or conduct. When, therefore, one enters into an agreement Avith others to do an unlaAvful act, he impliedly assents to the use of such means by his co-conspirators as is necessary, ordinary or usual in the accomplishment of an act of that character. But beyond this his implied liability can not be extended. So, if the unlaAvful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence, Avhich may result in the taking of life unlaAvfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do. in furtherance of the common design, whether he is present or not.
But where the unlawful act agreed to be done is not of a dangerous or homicidal character, and its accomplishment does not necessarily or probably require the use of force or violence, which may result in the taking of life unlawfully, no such criminal liability will attach merely from the fact of having been a party to such an agreement. The views here expressed are fully sustained by the following authorities: 1 Bish. Crim. L. (6th ed.) sec. 641; Hawkins’ P. C. book 2, chap. 29, secs. 19, 20, 21; Foster 369, 370; Regina v. Franz, 2 F. & F. 580; Regina v. Horsey, 3 id. 287; Regina v. Luck, id. 443; Roscoe’s Crim. Ev. 673, 655; Regina v. Tyler, 8 C. & P. 616; Regina v. Lee et al. F. &. F. 63; Regina v. Turner et al. 4 id. 339; Rex v. Hawkins, 3 C. & P. 392; Watts v. The State, 5 W. Va. 532; Rex v. Howell, 9 C. & P. 437.
We are.aware of the fact that instructions have been approved by this and other courts, and that general statements are to be found in some of the cases which, upon' first view, might be supposed to be in conflict with the views here announced, but upon a 'critical examination of the cases in which they occur, it will be found they differ materially in their facts from the case at bar.
It is believed that no well considered case of any respectarle court of final resort can be found that is in conflict Avith the conclusion reached' in this case, and even if such cas.e could be found, we would not feel inclined to follow it. The propriety of giving or refusing an instruction must always be determined by the facts established in the particular case in which the instruction is asked. Hence it frequently happens that a particular instruction may be entirely proper ill on.e case, and at the same time erroneous in another, in many respects just like it, by reason of some additional question or element entering into the latter which does not appear in the former. ' r
For the error indicated the judgment of the court below is reversed, and the cause remanded for further proceedings in conformity with this opinion.
Judgment reversed.