State v. Bingham.
| Decision Date | 17 June 1896 |
| Citation | 42 W.Va. 234 |
| Parties | State v. Bingham. |
| Court | West Virginia Supreme Court |
Under section 10, chapter 148, Code 1891, a jury may find the fact of combination and conspiracy from the fact that the parties were present, aiding and abetting in the commission of the offense charged, if satisfied of such conspiracy beyond a reasonable doubt. The presumption there authorized is one of law, but not conclusive, and may be rebutted.
The provisions of said section that if the alleged conspirators are present, aiding and abetting in the commission of the act, it shall be presumed that the act was done in pursuance of conspiracy, is constitutional.
An instruction that, if such conspiracy exist, it is immaterial which was the first aggressor the conspirators or the injured party is wrong.
Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject. The court need not repeat instructions already substantially given.
McCallister & Blackwood, E. H. Fitch and Lace Marcum for plaintiff in error. Lace Marcum cited Code, c. 148, ss. 9, 10; 25 W. Ya. 689; Bish. Stat. Crimes, §§ 70, 71, 74, 75, 230, 232; 26 W. Ya. 338; 35 W. Ya. 278; 11 W. Ya. 743; 8 Tex. App. 434-42. T. S. Riley, Attorney-General for the state, cited 3 Greenl. Ev. (6th Ed.) § 93; 1 Greenl. Ev. (11th Ed.) § 2.
J. M. Bingham, Edmund Ery, and David Flaherty were jointly indicted in the Circuit Court of Cabell county under section 10, chapter 148, Code 1891, called the "Red Men's Act", the indictment charging that they conspired together to inflict bodily injury upon R. B. Yowell, and did, in pursuance of the conspiracy, beat, wound, and greatly injure him. Bingham was tried separately, convicted, and sentenced to the penitentiary for three years, and has brought his case here.
Brief of counsel for the defendant specifies error in the rejection of certain evidence, but no bill of exception was taken on this specific ground, nor was it pointed out as a ground for a new trial when a new trial was asked; and, though I find the matter in the stenographer's report of evidence? no finger pointed the judge to it, either by call for bill of exceptions on that point, or by specification in the motion for new trial, and we do not consider it. Brown v. Ft. Pleasant, 36 W. Va. 290 (15 S. E. 209); Gregory's Adm'r v. Railroad Co., 37 W. Va. 606 (16 S. E. 819); Halstead v. Norton, 38 W. Va 727 (18 S. E. 953). The particular evidence must be specified out of the great mass.
Complaint is made that the two instructions following were given at the state's request: Instruction No. 1: "If the jury believe from the evidence that the prisoner, Bingham, in pursuance of an understanding and combination between himself and Edmund Fry and David Flaherty, or either of them, assaulted R. B. Yowell in the night-time, on the street, in the city of Huntington, in this county, for the purpose of whipping him or doing him an injury, and did then and there inflict any punishment or bodily injury upon said Yowell, and the said Fry and Flaherty, or either of them, were present when said assault was so made and injury inflicted by said Bingham, and that they, or either of them, aided or abetted said Bingham in said assault, either by word or action, then they must find the prisoner guilty as charged in the indictment." Instruction No. 2: "The court further instructs the jury that if they believe from the evidence in this case that the prisoner assaulted and beat R. B. Yowell, and inflicted upon him injury, in this county, on or about the night of November 25, 1895, and that David Flaherty and Edmund Fry were present when said assault was so made by said Bingham upon said Yowell, and that they aided and abetted said Bingham in said assault and battery, either by preventing others from interfering to prevent or stop said assault, or by assisting in administering punishment to said Yowell themselves, then they must presume that said assault was made and such injury inflicted in pursuance of a combination and conspiracy between said prisoner, Fry, and Flaherty; and the burden of proving that such combination and conspiracy did not exist, and that such assault was not made and such injury inflicted in pursuance thereof, is upon the prisoner, and unless he shows by clear, satisfactory, and convincing proof that such combination and conspiracy did not exist, or it appears from the whole evidence and circumstances of the case, then they must find the prisoner guilty."
It is urged against those instructions that they assert the legal proposition that if oneperson assaults and injures another, and other persons are present, aiding and abetting, the jury may therefore find the fact that they had combined and conspired to do the wrongful act in other words, find the fact of conspiracy, without other independent proof of conspiracy whereas there should be proof first of the conspiracy, and then the acts done will be presumed to be done in pursuance of it, and the existence of the conspiracy can not be found merely from the presence of the parties, and the doing of the act by one, and the aiding and abetting by others. It is said that section 9 speaks of a conspiracy, and that section 10 says that if certain acts be done it shall be presumed that they were "in pursuance of such combination or conspiracy" that is, such a conspiracy as by proof has been established under section 9 and that it does not say it shall be taken to be in pursuance of a conspiracy. I do not think such a construction is the true construction of the statute. The position would do under the common-law, but the statute intended a change. As stated in State v. Porter, 25 W. Ya. 685, when this act was passed, bands of men under the name of "Red Men," "Regulators," and "White Caps," assuming to take the law into their own hands, and inflict punishment of the most grave character (even death) on those falling under their arbitrary bar of condemnation, afflicted certain sections of the state, and a desperate remedy was needed. They organized in secret, and appeared often in disguise. It was impossible often to establish their conspiracy. It was thought necessary, and not unwise, when these men were found together, engaged in these acts of lawless outrage, to assume that they were executing a prearranged programme a reasonable and natural presumption. The last two clauses of section 10 plainly show this aim and intent. I do not understand that any question is raised of the constitutionality of those clauses declaring that if two or more persons unite in the acts specified in that section, it shall be taken that they are conspirators acting in pursuance of a formed conspiracy, but only a question of their construction is intended to be raised. I shall not, therefore, discuss the constitutional question. An examination has satisfied me that no objection to the act on that score can be raised, as I think will appear form Board v. Merchant, 103 N". Y. 143 (8 K E. 484); People v. Cannon, 139 rJ. Y 32 (34 K E. 759); Id., 36 Am. St. Rep. 668, and full note; Wooten v. State (Fla.) 1 L. R. A. 819 (5 South. 39;) State v. Beswick (contra) 13 R. I. 211; Com. v. Williams, 6 Gray, 1; State v. Higgins, 13 R. I. 330; State v. Mellor, Id. 667; 1 Bish. Cr. Proc. § 1090; Whart. Cr. Ev. § 715; Cooley, Const. Lim. 367. In the absence of a statute provision, it might be argued that when several persons unite in violence to another, it is in pursuance of a conspiracy, as it may be argued that the recent possession of stolen goods shows their possessor to be the thief; and these two arguments would rest on principles of logic or probability in the particular cases, and, if ajury should find in favor of those arguments, they would be...
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