Adams, Ch. J.
The case is submitted to us upon a tran[113]*113script of tlie entire record, without abstract, argument or assignment of errors. ¥e have, however, examined the case as best we could, without the aid of counsel, and will proceed to notice some of the matters which we think it is possible are relied upon for a reversal.
i criminal fury-'eSung hy-stauders. I. The regular panel of jurors summoned for the term consisted of twenty persons, but two had been excused, and C0UI’k was proceeding with eighteen jurors. When this case came on for trial, one jury was ouf- deliberating upon its verdict in a case, upon which jury were nine persons belonging to the regular panel, leaving only nine of the panel for the trial of the defendant. The defendant asked the court to delay until those' of the regular panel who were out could be in attendance, or that additional persons be drawn from the jury lists. The court refused the request, and ordered the jury to be filled from the by-standers, or from the body of the county. To the action of the court in this respect the defendant excepted. It was competent for the court to discharge two jurors of the regular panel, and proceed with eighteen, if in the judgment of the court the business of the term did not require more. (Code, § 233.) We will presume that in the judgment of the court eighteen were deemed sufficient. A larger number being required when this case came on for trial, it was competent to summon jurors from the by-standers, or the body of the county. (Code, § 4396.)
2. CRIMINAL evidence: murder by conspirators : history of conspiracy. II. On the night of the 7th of January, 1885, a dwell-was ing-house in the town of Angus, Greene county, surrounded by a mob, and entered, and one of the inmates, Neis Munson, was shot and killed. The evidence tends to show that defendant was one of the mob, and took an active part in entering the house, but the evidence fails to show that he was the one who fired the fatal shot. The difficulty which resulted in the homicide grew out of a miners’ strike. A large number of the coal miners in. and about Angus struck, and left their [114]*114employment, as early as October, 1884. Various attempts were made by the proprietors of the mines to supply the places of the striking miners by the importation of new men. The plans of the proprietors were constantly interfered with by the striking miners, and many of the new men were caused to leave. Matters, however, did not assume a very turbulent appearance until about the 11th of December, 1884. A considerable number of new men had been imported upon the 10th of that month. The striking miners appeared át once, and requested of the proprietors that they be allowed access to the new men, for.the purpose of persuading them to leave. The proprietors acceded to their request, so far as to consent that a committee or representation from the striking miners should have access to the new men, and be allowed to talk to them, and that the new men should, after that, be allowed to act freely in the matter, and stay or leave as they should think best. On the morning of the 11th of December, the striking miners were allowed to present their case to the new men. Many words of persuasion were used to induce them to leave, and a few words of intimidation. Rut the words of intimidation were not approved by all the striking miners, and some expressly disclaimed any intention of using violence. The new miners, after the interview which was had with them, took a vote, and decided to remain. The result was very unsatisfactory to the striking miners. They began at once to show appearances of anger, arid commenced the use of abusive language towards the new men, and to demand admittance into the house where they were, and to assume a threatening attitude towards them. The proprietors were led to believe that they would not, without assistance, be able to protect the new men from violence, and one of them went to a telephone, and communicated with a telegraph station, and asked that a request be sent to the governor for troops. The fact that such message had been sent became known to the striking miners, and their tumultuous assemblage was soon dissolved. To use the language of one [115]*115of tbe witnesses, “ it soon melted away.” Troops were furnished, but soon withdrew. The withdrawal seemed to furnish an occasion for the renewal of hostilities on the part of the striking miners.
Tbe evening of the 7th of January was selected as the time for making an effective demonstration. They assembled in large numbers, and, as the evidence tends to show, the defendant was among them, taking an active part. They first assailed a gang of men on their way home at night from what is called the “ Standard Coal .Bank.” They no longer resorted to persuasions, but to violence. They wounded several of them, and drove them out of the town, and to some distance away, and the assailed finally took refuge in the town of Perry. The evidence tends to show that the defendant was not only among the assailants, but used force in compelling the men to leave. The assailants returned in a short time, and surrounded and entered the house in which Mun-son was killed. Several shots were fired into the house, and inside of the house shots were fired up the stairway, in the direction of the chamber in which some of the inmates had taken refuge. The mob in the meantime clearly announced their purpose to compel the new employes to leave their employment. After the survivors had consented to do so, the mob retired in a body, but not without threatening, as they passed away, to take the life of one Markham, who was present, a superintendent of one of the mines, and several shots were' fired, apparently with the design of carrying out the threats.
In the course of the trial a very large number of objections were interposed by the defendant to the admission of evidence, some of which were overruled. The evidence, which was admitted over the defendant’s objections, tended to show the history of the trouble as set out above, a consid: erable part of which took place before there were any acts of violence on the part of any one, and before it is certain that any acts of violence were contemplated. But, in our opin[116]*116ion, it was proper to trace the growth of the conspiracy from the beginning. The character and purpose of the combination before it became unlawful had a tendency to shed light upon its acts afterwards. Of course, if the defendant had withdrawn from the combination before it became unlawful, he would uot have become a conspirator; but the evidence tends strongly to show that he did not withdraw, but remained to the end. In view of the whole case, we are unable to say that the evidence objected to was inadmissible.
_._. anoflfer i?er-U son-III. The defendant objected to the admission of evidence of threats to kill Markham. The threats were made after the killing of Munson; But the threats charac-tenze¿l the firing which immediately followed, and the whole was done in the execution of the single purpose for which the mob was formed, and that was the prevention of the employment of new men. It tended to show the desperate character of the mob, and that murder had been made a part of its programme.
4. cbiminax, by^cons'inra-gunty!’11 IT.
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Adams, Ch. J.
The case is submitted to us upon a tran[113]*113script of tlie entire record, without abstract, argument or assignment of errors. ¥e have, however, examined the case as best we could, without the aid of counsel, and will proceed to notice some of the matters which we think it is possible are relied upon for a reversal.
i criminal fury-'eSung hy-stauders. I. The regular panel of jurors summoned for the term consisted of twenty persons, but two had been excused, and C0UI’k was proceeding with eighteen jurors. When this case came on for trial, one jury was ouf- deliberating upon its verdict in a case, upon which jury were nine persons belonging to the regular panel, leaving only nine of the panel for the trial of the defendant. The defendant asked the court to delay until those' of the regular panel who were out could be in attendance, or that additional persons be drawn from the jury lists. The court refused the request, and ordered the jury to be filled from the by-standers, or from the body of the county. To the action of the court in this respect the defendant excepted. It was competent for the court to discharge two jurors of the regular panel, and proceed with eighteen, if in the judgment of the court the business of the term did not require more. (Code, § 233.) We will presume that in the judgment of the court eighteen were deemed sufficient. A larger number being required when this case came on for trial, it was competent to summon jurors from the by-standers, or the body of the county. (Code, § 4396.)
2. CRIMINAL evidence: murder by conspirators : history of conspiracy. II. On the night of the 7th of January, 1885, a dwell-was ing-house in the town of Angus, Greene county, surrounded by a mob, and entered, and one of the inmates, Neis Munson, was shot and killed. The evidence tends to show that defendant was one of the mob, and took an active part in entering the house, but the evidence fails to show that he was the one who fired the fatal shot. The difficulty which resulted in the homicide grew out of a miners’ strike. A large number of the coal miners in. and about Angus struck, and left their [114]*114employment, as early as October, 1884. Various attempts were made by the proprietors of the mines to supply the places of the striking miners by the importation of new men. The plans of the proprietors were constantly interfered with by the striking miners, and many of the new men were caused to leave. Matters, however, did not assume a very turbulent appearance until about the 11th of December, 1884. A considerable number of new men had been imported upon the 10th of that month. The striking miners appeared át once, and requested of the proprietors that they be allowed access to the new men, for.the purpose of persuading them to leave. The proprietors acceded to their request, so far as to consent that a committee or representation from the striking miners should have access to the new men, and be allowed to talk to them, and that the new men should, after that, be allowed to act freely in the matter, and stay or leave as they should think best. On the morning of the 11th of December, the striking miners were allowed to present their case to the new men. Many words of persuasion were used to induce them to leave, and a few words of intimidation. Rut the words of intimidation were not approved by all the striking miners, and some expressly disclaimed any intention of using violence. The new miners, after the interview which was had with them, took a vote, and decided to remain. The result was very unsatisfactory to the striking miners. They began at once to show appearances of anger, arid commenced the use of abusive language towards the new men, and to demand admittance into the house where they were, and to assume a threatening attitude towards them. The proprietors were led to believe that they would not, without assistance, be able to protect the new men from violence, and one of them went to a telephone, and communicated with a telegraph station, and asked that a request be sent to the governor for troops. The fact that such message had been sent became known to the striking miners, and their tumultuous assemblage was soon dissolved. To use the language of one [115]*115of tbe witnesses, “ it soon melted away.” Troops were furnished, but soon withdrew. The withdrawal seemed to furnish an occasion for the renewal of hostilities on the part of the striking miners.
Tbe evening of the 7th of January was selected as the time for making an effective demonstration. They assembled in large numbers, and, as the evidence tends to show, the defendant was among them, taking an active part. They first assailed a gang of men on their way home at night from what is called the “ Standard Coal .Bank.” They no longer resorted to persuasions, but to violence. They wounded several of them, and drove them out of the town, and to some distance away, and the assailed finally took refuge in the town of Perry. The evidence tends to show that the defendant was not only among the assailants, but used force in compelling the men to leave. The assailants returned in a short time, and surrounded and entered the house in which Mun-son was killed. Several shots were fired into the house, and inside of the house shots were fired up the stairway, in the direction of the chamber in which some of the inmates had taken refuge. The mob in the meantime clearly announced their purpose to compel the new employes to leave their employment. After the survivors had consented to do so, the mob retired in a body, but not without threatening, as they passed away, to take the life of one Markham, who was present, a superintendent of one of the mines, and several shots were' fired, apparently with the design of carrying out the threats.
In the course of the trial a very large number of objections were interposed by the defendant to the admission of evidence, some of which were overruled. The evidence, which was admitted over the defendant’s objections, tended to show the history of the trouble as set out above, a consid: erable part of which took place before there were any acts of violence on the part of any one, and before it is certain that any acts of violence were contemplated. But, in our opin[116]*116ion, it was proper to trace the growth of the conspiracy from the beginning. The character and purpose of the combination before it became unlawful had a tendency to shed light upon its acts afterwards. Of course, if the defendant had withdrawn from the combination before it became unlawful, he would uot have become a conspirator; but the evidence tends strongly to show that he did not withdraw, but remained to the end. In view of the whole case, we are unable to say that the evidence objected to was inadmissible.
_._. anoflfer i?er-U son-III. The defendant objected to the admission of evidence of threats to kill Markham. The threats were made after the killing of Munson; But the threats charac-tenze¿l the firing which immediately followed, and the whole was done in the execution of the single purpose for which the mob was formed, and that was the prevention of the employment of new men. It tended to show the desperate character of the mob, and that murder had been made a part of its programme.
4. cbiminax, by^cons'inra-gunty!’11 IT. The court gave an instruction in these words: “ It is proper for you to consider the situation fully, as the evidence develops it; the trouble, if any, which existed between the old miners and their employers; the fact, if it is a fact, that a strike existed among the old miners, and the extent and purpose thereof; the conduct of the striking miners towards the new ones, and all other acts of the parties, in so far as they are shown, and are shown to be within the knowledge of the defendant, but no others. The conduct or declai’ations of other parties, except such as are shown to be in the presence of the defendant, are not competent as against him to establish either the existence of a conspiracy, or the defendant’s connection with it; but if a conspiracy is shown, and the defendant’s connection with it as1 one of the conspirators is established, then the act of any one, done in carrying out the purpose of the combination, is competent, as against the defendant, and binding on him, the same as if done by himself.”
[117]*117We have set out the foregoing instruction partly for the purpose of showing the guarded manner in which the jury was instructed in regard to the application of the evidence, and partly for the purpose of noticing a rule of law to the correctness of which we presume that the defendant’s counsel do not assent. In the absence of all argument, we are not permitted to know what their position is, but we presume that they rely largely upon the fact that it does not appear from the evidence that the defendant was the one who did the shooting, or that it was understood by him that any one was to be murdered. Perhaps the most that the jury could have inferred from the evidence was that the defendant had formed, with .others, a combination to forcibly compel the new men to leave their employment. We think that they might have inferred this much, because the evidence tends to show that the defendant actually used force in compelling others to leave on the same evening, and the evidence shows, beyond controversy, that the combination designed that all should leave. We think that this much can be said in regard to the defendant’s designs, and perhaps not much more. It is possible, then, if not probable, that he contemplated driving out Munson, and those with him in the house which was mobbed, in the same way in which the miners from the Standard coal bank had been driven out about two hours before, and fire-arms had not been resorted to in the case of those miners. Put where there is a conspiracy to accomplish an unlawful purpose, (as the forcible driving out of the new' miners was,) and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the purpose in which they are all at the time engaged. See 1 Bish. Crim. Law, § 636, and cases cited.
Whether, in case the defendant was not the one who fired the fatal shot, he was guilty of the same degree of crime as the one who did, we need not determine. The defendant was convicted only of manslaughter. The most which the [118]*118instruction held was that, if the defendant was engaged in the conspiracy in which the homicide was committed, the act of homicide was binding upon him, the same as if done by himself. By this the court evidently meant that the defendant would not properly escape conviction for the act. The degree of his guilt was a different question, and as to that we need not, under the verdict, express any opinion.
We have examined the entire record, and find no error.
AFFIRMED.