Williams v. The State. 1. That as Baldwin was the one who personally committed the act, and as it was necessary to establish his guilt, in order to the conviction of the appellant, the statements of Baldwin were competent. The admission.of the evidence can not, in our opinion, be justified on this ground alone. The confession of the principal is not admissible in evidence to prove his guilt upon an indictment against the accessory. Roscoe Crim. Ev. 49. See, also, Commonwealth v. Elisha, 3 Gray, 460. But the other ground upon which it is urged that the evidence was admissible justifies the admission. There was evidence tending to show a conspiracy between Baldwin and the appellant to commit the offence. Perhaps not to commit this particular offence, but offences of force and violence. "If two or more combine to do an unlawful. thing, and the act of one, proceeding according to the common plan, terminates in a criminal result, though not the particular result intended, all are liable." I Bish. Crim. Law, sec. 636. There was, as we have said, evidence tending to show a combination and conspiracy between Baldwin and the appellant to commit offences of force and violence, and, we may add, to unlawfully resist an arrest. Some of this evidence may be noted. James James testified: "Know Williams and Baldwin; saw them July 6th, 1873, at a picture boat at Florence; Williams said: 'What are you doing here, you d―d thief?' I said: 'To see and be seen.' I asked them what they came back for, and he said, 'we came back to clean the d-d town out. I ran one d-d son of a bitch out of town, and am going to run the balance out. There are not enough men in town to arrest us.' He told Baldwin to cut and shoot as he pleased; that he would stay with him in blood up to his knees." Filmore F. Graves testified: "Know Williams and Baldwin; had a conversation on Beymer's corner, July 6th; Baldwin said there were two writs for him, and that there were two writs for him;" (Williams?) "that there were not men Williams v. The State. enough in town to arrest him; he offered Joe Keeth five dollars to arrest him; Williams was with him; he told Williams there were two writs for him; that there were two of them; Williams said he knew there were two of them, and that they could not take both." We quote the following paragraph from 1 Greenl. Ev., sec. III, as being applicable to the case: "The same principles apply to the acts and declarations of one of a company of conspirators, in regard to the common design as affecting his fellows. Here a foundation must first be laid, by proof, sufficient in the opinion of the judge, to establish, prima facie, the fact of conspiracy between the parties, or proper to be laid before the jury, as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object is, in contemplation of law, the act and declaration of them all; and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act, which had before been done by the others, and a party to every act, which may afterward be done by any of the others, in furtherance of such common design." We will presume, the record not showing the contrary, that the evidence showing the conspiracy was introduced before that objected to. There was no error in the admission of the evidence. The appellant objects to the charges of the court, but has pointed out no objection to any except the twenty-second and twenty-third. We have examined the others and discover no error in them. The substance of the twenty-second and twenty-third charges is, that if Baldwin perpetrated the assault and battery with the intent as charged, and if the appellant was present aiding and abetting him in the com Price et al. v. Bowen. mission of the offence, the latter should be convicted. It is objected, as we understand the brief of counsel for the appellant, that where a party is present aiding and abetting in the commission of a felony, he is only an accessory, and must be indicted as such. There is no foundation for this objection. A person who is thus present aiding and abetting in the commission of a felony is a principal, and not an accessory. He is a principal in the second degree, but may be indicted as principal in the first degree, and the indictment will be sustained by proof of his being principal in the second degree. I Bishop Crim. Law, sec. 648. Whether the sixty-sixth section of the criminal code, 2 G. & H. 405, would be constitutional as applied to mere accessories before the fact, we need not determine. This is not such a case. There is no error in the record. The judgment below is affirmed, with costs. PRICE ET AL. v. BOWEN. From the Wayne Circuit Court. 7. P. Siddall, for appellants. L. D. Stubbs, for appellee. DOWNEY, J.-There is but one question in this case, and that is the same question that was decided in the case of Price v. Pollock, ante, p. 362. The first named of the appellants is the same person in each case. On the authority of that case, the judgment in this case must be affirmed. The judgment is affirmed, with three per cent. damages and costs. Mendenhall et al. v. Baylies. MENDENHALL et al. v. Baylies. PLEADING.-Promissory Note.-Party in Interest.—To an action upon a promissory note payable in bank, and indorsed by the payee, a paragraph of answer by one of the makers, verified by oath, in which he attempts to plead a set-off or counter-claim, but which is bad for that purpose, if it alleges that the payee wrote his name across the back of the note, but never delivered it to the plaintiff, and that the plaintiff has no right, title, or interest therein, and is not the real party in interest, and that the payee owns and holds the note, is good, as showing that the suit is not being prosecuted by the real party in interest. From the Wayne Circuit Court. L. D. Stubbs, for appellants. Holland & Binkley and J. C. Whitridge, for appellee. PETTIT, J.-This suit was brought by the appellee, Edgar M. Baylies, against William D. Mendenhall, Gardiner Mendenhall, Isaac Warner, and Joseph M. Baylies, on a note, of which the following is a copy: "$825,55. RICHMOND, IND., June 3d, 1872. "On the 1st day of January, 1873, after date, I promise to pay to the order of Joseph M. Baylies eight hundred and twenty-five dollars and fifty-five cents, at the First National Bank, Richmond, Indiana, with interest payable annually at the rate of ten per cent. per annum, and after maturity with interest at the rate of ten per cent. per annum, and attorney's fees if suit be instituted on this note. Value received, without any relief whatever from valuation or appraisement laws. The drawers and endorsers severally waive presentment for payment, protest, and non-payment of this note. WM. D. MENDENHALL, "ISAAC WARNER, Indorsed: "J. M. BAYLIES." "G. MENDENHALL." The complaint was in the usual and proper form against the makers and endorsers of such note. Warner was not served with process, and did not appear. Joseph M. Baylies, the payee and indorsee, was served but did not appear, and was defaulted. The two Mendenhalls 47 575 126 113 Mendenhall et al. v. Baylies. appeared and answered, first, the general denial; second, payment; and, third, as follows: "For amended third paragraph of answer, the said William D. Mendenhall and Gardiner Mendenhall say, that on the 14th day of May, 1872, the said William D. Mendenhall and the said Joseph M. Baylies made an agreement, a copy of which is hereto annexed and made a part hereof; that afterward, on the 3d day of June, said William and Joseph made a second agreement modifying the first agreement in part, and adopting the balance, which last agreement is also annexed hereto and made a part hereof; by which agreements, among other things, it was agreed on the part of said William, that he would convey to said Joseph certain real estate, to wit, lot 510, in that part of the city of Richmond, Wayne county, State of Indiana, laid off by Elizabeth Starr, excepting twentyfive feet off of the west side of said lot, and execute and deliver to said Joseph his note for eight hundred and twentyfive dollars and fifty-five cents, due January 1st, 1873, with said Isaac Warner and Gardiner Mendenhall as sureties; and that he would pay certain rents, and do and pay for certain repairs and painting; in consideration of which the said Joseph agreed, among other things, to transfer to said William certain shares of stock, in number 265, in the incorporated manufacturing company of Baylies, Vaughn & Co., or to whom said William should direct; and that said William should have the dividends on said stock accrued from January 1st, 1872; and, as an inducement to said William to enter into said agreement, said Joseph falsely and fraudulently represented to said William that the said incorporated company had solvent notes amounting to eleven thousand dollars, and that the liability of the company was seven thousand dollars, and that they had an amount of solvent notes above their indebtedness of four thousand dollars; and defendant William, relying on said representations, entered into said agreement, and performed his part of said agreement, and executed said note, with the said Gardiner Mendenhall and Isaac Warner as sureties, and which note is the |