57. MEMBERSHIP IN A CONSPIRACY MAY BE PROVED WITHOUT SHOWING THE

NAME OR DESCRIPTION OF THE ALLEGED MEMBER. Hence, where several persons are on trial for murder, and the act causing the death of the deceased was committed by another person, with whom it is claimed that the defendants conspired to commit such murder, the fact that he, though his name and personal description are unknown, was a member of such conspiracy, is sufficiently established by evidence tending to show that he threw a bomb made by an agent of the conspiracy, obtained from a place where only a member could have obtained it, and at a time when no one but a member would have sought it; and that he threw it at a meeting appointed by the conspiracy, from the midst of a company of persons belonging to the conspiracy, upon the happening of a contingency provided for, and as part of an attack planned by the conspiracy. Id. 58. ONE MAY BE ACCESSARY TO AN UNKNOWN PRINCIPAL in the perpetration of a crime. If the principal felon is unknown, the indictment of the accessary may state it accordingly. If there are two counts in the indictment, one charging the principal to be known and the other charging him to be unknown, it is sufficient if either is proved. Id.

59. CHARGING ACCESSARY AS PRINCIPAL. - Under the statutes of Illinois, one who, not being present aiding, abetting, or assisting, hath advised, encouraged, aided, or abetted the perpetration of a crime, may be indicted and punished as a principal. The indictment against him need not say anything about his having abetted either a known or an unknown principal. Id.

60. THE INSTRUCTIONS GIVEN TO THE JURY MUST BE CONSIDERED AS A WHOLE. If the appellate court can see that an instruction, although not stating the law correctly, is qualified by others, so that the jury were not likely to be misled, the error will be obviated. This rule does not contravene the rule that, in a criminal case, material error in one instruction calculated to mislead is not cured by a subsequent contradictory instruction. Id.

61. GUILT OF MURDER ARISING FROM GENERAL ADVICE. — If the defendants, as a means of bringing about a social revolution, and as a part of a larger conspiracy to effect such revolution, also conspired to excite classes of workingmen in a city to sedition, tumult, and riot, and to the use of deadly weapons and taking of human life, and for the purpose of producing such tumult, riot, use of weapons, and taking of life, advised and encouraged such classes by newspaper articles and speeches to murder the authorities of the city, and a murder of a policeman resulted from such advice, then the defendants are responsible therefor, and guilty of the crime of murder. Id.

62. REASONABLE DOUBT. — When instructing jurors upon the subject of reasonable doubt, it is not error for the court to say to them: "You are not at liberty to disbelieve as jurors if from the evidence you believe as men." Id.

63. UNDER A STATUTE DECLARING THAT JURIES IN ALL CRIMINAL CASES SHALL BE JUDGES OF THE LAW AND FACT, the court may tell the jurors that if they can say upon their oaths that they know the law better than the court, they have the right to do so, but that before saying this, upon their oaths, it is their duty to assure themselves that they are not acting from caprice or prejudice, and to reflect whether from their study and experience they are better qualified to judge of the law than the court. Id.

64. A CONSPIRACY TO BRING ABOUT A CHANGE OF GOVERNMENT by peaceful means if possible, but if necessary, by a resort to force, is unlawful. Id. 65. ANARCHISTS. IT IS NOT ERROR TO REFUSE TO INSTRUCT A JURY, that "it cannot be material that the defendants, or some of them, are or may be socialists, communists, or anarchists," when the defendants are on trial for murder, and there is evidence tending to show that such murder was committed in the prosecution of a conspiracy to resist, and if necessary to kill, members of the police or militia, as the representatives of law and government. The fact that defendants were anarchists may properly be considered by the jury, in connection with all the other circumstances of the case, with a view of showing what connection, if any, the defendants had with the conspiracy, and what were their motives in joining it. Id.

66. THROWING A DYNAMITE BOMB INTO A BODY OF POLICEMEN CANNOT BE EXCUSED on the ground that they have, in excess of their authority, given an order for persons there assembled to disperse, and the bombthrower, being a member of the assemblage, adopts this mode of resisting the invasion of his rights. Id.

67. INSTRUCTIONS AS TO THE FORM OF VERDICT CANNOT BE COMPLAINED of, unless the counsel for the accused prepared an instruction, indicating such form as they deemed to be correct, and asked the trial court to give it, where the court, at the request of defendants, instructed the jury that, under an indictment for murder, the accused might be found guilty of manslaughter, and that it was their duty to so find, if they believed that the defendants, or any of them, were guilty of manslaughter.

Id.

68. JURY TRIAL. BY ACCEPTING A JUROR WHILE THE ACCUSED HAVE UNUSED PEREMPTORY CHALLENGES, they are estopped from complaining that he was not impartial.

Id.

69. JURY TRIAL. ERROR OF THE COURT IN OVERRULING A CHALLENGE FOR CAUSE will not be reviewed in the appellate court, if the defendant, having any unused peremptory challenges at the time, uses them to exclude from the jury the person so challenged for cause, though during the subsequent progress of the cause all the defendant's peremptory challenges are exhausted before a full jury is finally obtained. No objections will be considered, unless made to jurors who tried the case. Id. 70. JURY TRIAL. - A JUROR IS NOT DISQUALIFIED, under the statutes of Illinois, to try a criminal case because he has an opinion, based upon rumor or newspaper statements, if he has expressed no opinion concerning the truth of such rumors or statements, and swears that he can fairly and impartially render a verdict in the case, in accordance with the law and the evidence. Id.

71. JURY TRIAL. — STATUTE IS NOT UNCONSTITUTIONAL which declares that, in any trial of a criminal cause, the fact that a person called as a juror has formed an opinion or impression, based upon rumor or newspaper statements (about the truth of which he has expressed no opinion), shall not disqualify him to serve as a juror in such case, if he shall, upon oath, state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement. Such statute does not conflict with a provision of the constitution guaranteeing to every accused person a speedy, public trial, by an impartial jury. It merely tends to secure intelligence in the jury-box, and to exclude dense ignorance therefrom. Id.

72. JURY TRIAL. -JURORS ARE NOT DISQUALIFIED BY HAVING A PREJUDICE AGAINST SOCIALISTS, COMMUNISTS, AND ANARCHISTS, because such prejudice is merely a prejudice against crime; and a prejudice against a crime, or against mean actions or dishonesty, does not render one incompetent to act as a juror. Id.

73. PREJUDICE AGAINST COMMUNISM OR ANARCHISM DOES NOT REnder a JuROR incapable of fairly and impartially trying the issue, whether the crime of murder has been committed by persons who are claimed to be communists and anarchists. Id.

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74. JURY TRIAL. THE SAME NUMBER OF PEREMPTORY CHALLENGES MUST BE CONCEDED TO THE STATE of Illinois, under its statutes, as to the defend. ants, where several are being jointly tried for the commission of the same crime. Id.

75. GRANTING SEPARATE TRIALS TO PERSONS JOINTLY INDICTED IS IN THE DISCRETION of the court, and an order refusing such trial will not be reviewed.

Id.

76. INTENT OR PURPOSE TO KILL AT TIME OF COMMISSION OF ACT IS ESSENTIAL to constitute the crime of murder, as defined by sections 3 and 4 of the Nebraska Criminal Code, and this intent must be specifically and directly averred as a part of the description of the offense in every indictment for either of those crimes. Schaffer v. State, 274.

77. REQUIREMENTS OF NEBRASKA STATUTE ARE NOT SATISFIED by an averment in an indictment for murder that the accused "feloniously, purposely, and of deliberate and premeditated malice," did make an assault on the deceased, and that he then and there "feloniously, purposely, and of his deliberate and premeditated malice, did shoot" the deceased with a gun loaded with, etc., inflicting on him a mortal wound, of which he then and there instantly died. In such case the indictment does not charge murder, because the intent or purpose to produce death is nowhere alleged. Id.

78. WHERE INDICTMENT FOR Murder under NebraskA STATUTE FAILS TO ALLEGE INTENT or purpose to kill, the defect is not cured by the concluding words of the indictment, "and so the grand jurors aforesaid," etc., do find and say that the accused "did, in manner and form aforesaid, feloniously, purposely, and of his deliberate and premeditated malice, kill and murder" the deceased. Such allegation is but a legal conclusion of the grand jury, drawn from the antecedent averments descriptive of the crime. Id.

79. CONCLUDING WORDS OF INSTRUCTION TO JURY ON TRIAL OF INDICTMENT FOR MURDER, held to be unnecessary, and their omission proper in the particular case. Id.

80. JURY MAY FIND PRISONER GUILTY OF MURDER IN SECOND DEGREE for a homicide committed by means of poison, for the reason that the question of degree is to be settled by them under the statute of Nevada, which provides that "all murder which shall be perpetrated by means of poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . . shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree." State v. Lindsey, 776.

81. JURY HAVE POWER TO FIX CRIME OF MURDER IN SECOND DEGREE when it ought, under the law and the facts, to be fixed in the first degree. Id.

82. IF JURY FIX CRIME OF MURDER IN SECOND DEGREE, in a case where the law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which the law will not take any cognizance, and of which he ought not to complain. Id.

83. INSTRUCTIONS ARE NOT ERRONEOUS OR MISLEADING when they are to the effect that if poison was prepared by the prisoner with suicidal intent, and was negligently exposed in such a place and manner as would likely to be unconsciously or without negligence taken by the decedent, the prisoner would be "liable for the consequences," the court in the same connection stating correctly what the consequences would be. Id. 84. EVIDENCE-ACTS OF CO-CONSPIRATORS.-Where three persons were present when the deceased came to his death by violence, inflicted by one or more of them, the others aiding, encouraging, or giving countenance to the deed, or ready to assist if necessary, whether present for the purpose by preconcert, or entering into the common illegal purpose at the time, all are equally guilty, and the acts of each may be proved against all, or any number of them; and the existence of such preconcert, conspiracy, or common purpose, is for the jury to determine. Amos v. State, 682. 85. CRIMINAL LAW-CHARGING JURY AS TO MURDER IN FIRST DEGREE.

It is not error to charge the jury that the four elements necessary to constitute murder in the first degree under the Alabama statute (Code, sec. 4295) are all embraced in the words "formed design," but it is better to charge in the language of the statute. Id.

86. CRIMINAL LAW. TO SUSTAIN PLEA OF SELF-DEFENSE in case of homicide, there must be shown a present pressing necessity, real or apparent, to protect the life of the defendant, or his person from great bodily harm; he must not be the aggressor nor provoke nor encourage the rencontre; and he must retreat from the combat, if there be a mode of escape consistent with his safety. A charge asked which omits either of these requisites to a sufficient hypothesis may be properly refused. Brown v. State, 685.

87. SAME SELF-DEFENSE - BURDEN OF PROOF.-USE OF DEADLY WEAPON RAISES PRESUMPTION OF MALICE, and casts on the defendant the burden of repelling such presumption, when it is not rebutted or overcome by the evidence which proves the killing. The onus to prove a present pressing necessity, real or apparent, to take life is on the defendant; but when he shows this, the prosecution may avoid the effect by proving that the defendant was at fault in bringing on the difficulty, or could have reasonably escaped. The prosecution holds the affirmative of these negative propositions of the plea of self-defense. Id.

88. CRIMINAL LAW- LARCENY. — ELECTION WILL NOT BE COMPELLED where the indictment does not designate a particular act, and there is evidence on the part of the prosecution tending to show more than one act; but when the indictment is so framed as to be adapted to the different phases which the evidence may present of a single transaction particularly charged, an election will be enforced. The principle of election is applicable only when there is evidence of separate and distinct transactions. Black v. State, 691.

69. SAME. - STRONG PRESUMPTION ARISES, ON PROSECUTION FOR LARCENY, THAT THERE WAS NO FELONIOUS INTENT, if the taking was open and notorious, and there was no subsequent attempt to conceal the property, and no denial, but an avowal of the taking; and this presumption must be repelled by clear and convincing evidence before a conviction is authorized. Id.

90. SAME REASONABLE DOUBT AS TO OWNERSHIP OF PROPERTY ALLEGED TO BE STOLEN. —If, looking at all the evidence, on a prosecution for the larceny of a hog, alleged to be the property of a person whose name is to the grand jury unknown, there exists a reasonable doubt whether the animal found in the defendant's possession belonged to himself or to some other person, this will entitle the defendant to an acquittal. Id. 91. EMBEZZLEMENT BY AGENT OR SERVANT. — A mail-rider in the service of the United States government who purloins the money from a registered letter in a mail-bag is not the agent or servant of the person who sent the letter, within the terms of the Alabama Statute, Code of 1886, section 3795, punishing embezzlement by an agent or servant. The term "agent" or "servant,” as used in the statute, imports the correlative idea of a principal or master, and implies an employment by virtue of which the money or property came into his possession. Brewer v. State, 693.

92. CRIMINAL LAW-ARSON. - Phrase "corn-crib containing corn," used in an indictment for arson, includes a corn-pen containing corn," as the latter words are used in the Alabama statute (Sess. Acts 1885, p. 105) defining arson in the second degree, and the burning is arson in the second degree. Cook v. State, 688.

93. SAME-WHAT BUILDINGS ARE WITHIN CURTILAGE OF DWELLING-HOUSE.— CURTILAGE USUALLY INCLUDES yard, garden, or field which is near to and used in connection with the dwelling. Many cases arise in which it can be affirmed, as inatter of law, that a given house or structure is or is not within the curtilage; but where the testimony is indeterminate in character, the question is properly submitted to the jury. Id.

94. MALICIOUS MISCHIEF INCLUDES ALL MALICIOUS PHYSICAL INJURIES TO RIGHTS OF ANOTHER which impair utility or materially diminish value, and is an offense under the common law of this country. State v. Watts, 216.

95. RAPE CONSISTS IN HAVING UNLAWFUL CARNAL Knowledge by a man of a woman, forcibly and against her will, and the offense may be committed as well on a woman unchaste, or a common prostitute, as on any other female. Wherever there is a carnal connection, without consent in fact, fraudulently or otherwise obtained, there is in the wrongful act itself all the force which the law demands as an element of the crime. Bailey v. Commonwealth, 87.

96. CONSENT INDUCED BY FEAR OF BODILY HARM IS NO CONSENT, and though a man lay no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dare not resist, he is guilty of rape by having the unlawful intercourse. Id.

97. RAPE, CIRCUMSTANCES UNDER WHICH SEXUAL INTERCOURSE AMOUNTS TO. - The accused entered the bed of the prosecutrix, his fourteen-year-old step-daughter, which was situated in a room in which three younger children were sleeping. There were no other persons in the house, the mother and older sister of the prosecutrix being absent, beyond call and reach. The prosecutrix forbid the accused from getting into bed with her, but made no outcry, and he got in, "held her hands, brought his private parts in contact with her private parts, and forced her." The children in the room were not awakened, a neighbor living one hundred yards distant heard nothing of it, and the prosecutrix made no complaint until nearly a week afterwards. The accused admitted that he had had intercourse with the prosecutrix. The jury found him guilty of rape.