unloading there, Race approached the wagon and was instantly shot by someone about the wagon. The evidence for the defense tended to show that Lamb was not present, and for him it was contended that if so he was not liable, since the act was not a natural or probable consequence of the burglary. The court refused to give such an instruction and instructed the jury that "if several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide." MULKEY, J. 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, when 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, which 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 with others to do an unlawful 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 cannot be extended. So, if the unlawful 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, which may result in the taking of life unlawfully, 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. Cr. Law (6th ed.), § 641; Hawk. P. C. bk. 2, c. 29, §§ 19-21; Fost. Crown Law 369, 370; R. v. Franz, 2 Fost. & F. 580; R. v. Horsey, 3 Fost. & F. 287; R. v. Luck, Id. 483; Rosc. Cr. Ev. 673, 655; R. v. Tyler, 8 Car. & P. 616; R. v. Lee, 4 Fost. & F. 63; R. v. Turner, Id. 339; R. v. Hawkins, 3 Car. & P. 392; Watts v. S., 5 W. Va. 532; R. v. Howell, 9 Car. & P. 437. CRAIG, J. (dissenting): I cannot concur with a majority of the court in reversing the judgment. Had it appeared that the killing of Race was not done in furtherance of or in prosecution

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of the original design to rob the store, or secrete the stolen goods, or was not a necessary or probable consequence likely to result from the conspiracy to rob and secrete the stolen goods, there might be more force in the position of counsel for defendant. But

the evidence, when fairly considered, seems to establish beyond a doubt that the killing was a consequence likely to flow from the conspiracy, which was anticipated by the conspirators, and for which they prepared themselves before they attempted to rob the store. Previous to the robbery a navy revolver was obtained at Friedberg's. This was loaded, and, on the night of the burglary, given to the defendant. Three of the other parties were armed, and Freeman, who was stationed on the outside, with Lamb, to watch, while the others entered the store, in his evidence says that Lamb sent him into the store, to see why those engaged in getting the goods. were so slow, and when he ascended the stairs where they were, as he was not recognized, two revolvers were pointed at him. If those parties engaged in the burglary did not intend to shoot if molested, why were they armed with revolvers? Judgment reversed; Craig, Walker, and Sheldon, JJ., dissenting. Lamb v. P., 96 Ill. 73, F. 130.

$83. "Abandonment."'

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(Eng. Old Bailey, 1785.) Taking Last Penny-Proof. Defendants were indicted for highway robbery; and it was proved that they stopped prosecutor in the street and demanded what money he had, on which he said he had but two-pence half-penny, and one of the prisoners then said to the other: "If he really has no more, do not take that." But the other took it. THE COURT. The point of law goes to the acquittal of both the prisoners; for if two men. assault another with intent to rob him, and one of them, before any demand of money, or offer to take it be made, repent of what he is doing, and desist from the prosecution of such intent, he cannot be involved in the guilt of his companion who afterwards takes the money; for he changed his evil intention before the act which completes the offense was committed. It is like the Ipswich

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case, where five men were indicted for murder; and it appeared, on a special verdict, that it was murder in one, but not in the other four; but it did not appear which of the five had given the blow which caused the death, and the court thereupon said that as the man could not be clearly and positively ascertained, all of them must be discharged. Both acquitted. R. v. Richardson, Leach C. C. (Ed. 3) No. 173. B. 166, Ke. 448.

(Conn. Sup. Ct. of Errors, 1879.) Giving Notice of Abandonment. Defendant and one Hamlin were convicted of murder in the first degree, in killing a night-watchman, Shipman, in their effort to

escape from the state prison. The evidence for the state indicated that they provided themselves with revolvers, gag, and handcuffs, and hid in the prison hall; and being discovered by Shipman, both fired at, wounded, pursued, caught, handcuffed, and gagged him; and that Allen then went to his cell, 150 feet away, leaving Hamlin with Shipman, where he was discovered and fired at by the guard; and that Shipman died of the wound next day. The defense was that Allen fired no shot, and that just before Hamlin shot Allen abandoned the effort and returned to his cell. The court instructed the jury that if Allen suddenly abandoned the enterprise and returned to his cell during the fatal encounter, without saying a word to Hamlin to the effect that he had abandoned it; and Hamlin, supposing that he was still acting with him, and had gone to his cell for something to aid it, fired the fatal shot, his abandonment under such circumstances would be of no importance. BEARDSLEY, J.

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A majority of the court think that the jury may have been misled by this part of the charge, and that, therefore, especially in view of the grave issues involved in the case, a new trial should be granted. If Allen did in fact before the homicide withdraw from the conspiracy, abandon the attempt to escape, and with the knowledge of Hamlin leave and go to his cell, Hamlin's misconstruction of his purpose in leaving did not necessarily make his conduct of no importance. Until the fatal shot there was the "locus penitentiae. To avail himself of it Allen must indeed have informed Hamlin of his change of purpose, but such information might be by words or acts; and if with the intention of notifying Hamlin of his withdrawal from the conspiracy he did acts which should have been effectual for that purpose, but which did not produce upon the mind of Hamlin the effect which he intended and which they naturally should have produced, such acts were proper for the jury to consider in determining the relation of Allen to the crime which was afterwards committed. Allen's act of leaving and going to his cell, if he did so, had some significance in connection with the question of intention and notice, and was therefore proper for the consideration of the jury. How much weight was to be given to it would depend upon circumstances, such as the situation of the parties and the opportunity for verbal or other notice. New trial advised.

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S. v. Allen, 47 Conn. 121, B. 394, Kn. 29, Mi. 483.

(Ga. Sup. Ct., 1860.) Defendant, convicted of larceny, moved for a new trial because the court erred in not instructing the jury at his request that if he repented before the theft, and did not participate in it he was not guilty, though he had conspired with the thieves to commit the crime. Motion denied and he brings error. LUMPKIN, J. We think the fourth charge should have been given. The law as well as the gospel allows a place of repentance. And, notwithstanding the accused may at one time have agreed to engage in this crime, yet, if he afterwards changed his mind and abandoned.

that intention, he is not guilty. And there was proof in that case to warrant a charge to that effect. Reversed. Pinkard v. S., 30 Ga. 757, F. 135, Mi. 335.

See other cases of abandonment as a defense: Glover v. C., § 62. Rape abandoned after attempt: Griffin v. S., § 60, dictum.

CHAPTER VI.

JURISDICTION AND PUNISHMENT.

§ 84. Outline, 269.

"LOCALITY OF THE CRIME."

§ 85. Classification, 269.

§ 86. "What Courts Have Jurisdiction to Punish Crimes Committed at the Particular Place," 269.

§ 87. "If the Wrong-doer was in One Place and His Act Took Effect in Another," 279.

§ 88. "If Goods Stolen in One Place are Taken to Another," 286.

89. "If a Fatal Injury is Inflicted in One Place and the Victim Goes to Another Place and Dies," 294.

"EXTRADITION AND RENDITION."

§ 90. In General, 299.

"FORMER JEOPARDY."

§ 91. Old Maxim and Constitutional Provision, 306.

§ 92. "Twice Put in Jeopardy," 307.

§ 93. "For One and the Same Offense," 315.

§ 84. Outline. Having examined the nature of a crime in general, and as to the intent, act, and actors, a few topics concerning jurisdiction and punishment, aside from pleading and procedure, merit attention before closing our observations on crimes in general. Of these we will consider: 1, locality of the crime; 2, extradition and rendition; and, 3, former jeopardy for the same offense.

"1. LOCALITY OF THE CRIME."

§ 85. Classification. The most perplexing questions on this topic are as to: 1, What courts have jurisdiction to punish crimes committed at the particular place; 2, if the wrongdoer was in one jurisdiction and his act took effect in another, where was the crime committed; 3, if goods stolen in one place are taken to another, is every removal or moving a new or continuing theft; and, finally, 4, if a fatal injury is inflicted in one place and the victim goes to another place and dies, where is the homicide committed.

§ 86. "What Courts Have Jurisdiction to Punish Crimes Committed at the Particular Place."

(Eng. C. C. R., 1807.) Homicide on Merchant Ship. The defendant, an alien enemy and prisoner of war, serving as a marine on an English merchant ship, was prosecuted under St. 43 G. 3, c. 113, § 6, and 33 Hen. VIII., c. 23, which give jurisdiction to a special