Page:06-24-1920 -The Story of the Jones County Calf Case.pdf/23

36 tending to show the association had anything to do with burning the barn or writing the letter.

The defendants asked the court to instruct the jury to disregard the foregoing evidence. This was refused, and the jury instructed they should disregard it, “unless you find there is testimony which connects [the defendants] in some way with such acts. More suspicion or supposition is not sufficient." It is insisted by counsel for the appellee that the error in the admission of the evidence aforesaid was} cured by the instruction given the jury. But it is error to give a11 instruction when there is no evidence to support it. This has been repeatedly ruled, and we do not understand counsel to claim otherwise.

Benjainin Yont testified that, at the term the indictment was found, one of the defendants, but which one he was unable to state, said “that if they could not get rid of him [plaintiff] no other way they would burn him out." It is said this evidence warranted the court in giving the instruction above stated.

The evidence is indeﬁnite and uncertain, and we think if the defendants were on trial for burning the barn, the evidence would have been inadmissible against any one of them, because it failed to identify the defendant who spoke the alleged words, and it would not have been admissible as evidence against all of the defendants unless a conspiracy to burn the barn had been established; and the rule must be the same in this case. There is no evidence tending to show. aeonspiracy to burn the barn.

John Hines testified he heard David Fall, one of the defendants, say, at the term the indictment was found: “We will convict Johnson sure; or if we do not convict him we will drive him out of the country.” Who Fall included when he said "we” the witness was unable to state. It is exceedingly doubtful whether what Fall said is binding on any one but himself; but concede the defendants are bound thereby, we do not think the presumption should be indulged the plaintiff was‘ to be driven out of the country by the perpetration of two serious criminal acts. It cannot be presumed that Fail intended to accomplish the desired end by unlawful acts. The evidence, therefore, was insufficient to connect the defendants with either the burning or writing the letter. The court, therefore, erred in the admission of the evidence. and in instructing the jury as above stated.

2. John Foreinan is one of the defendants, and the plaintiff, when on the stand as a witness, "testiﬁed this case was twice tried in Benton county, and that said Foreman testified on said trials, or one of them, "that they had met this organization, had met these defendants and the balance of them, and they had determined to prosecute whether anybody told them or not." That is, as we understand, whether or not the district attorney advised the conmencement of the criminal proceeding. This evidence was objected to ‘by all of the defendants except Foreman, but the objection was overruled. The evidence was admissible against Foreman as an admission. It stands upon the same footing as an admission out of court. But it was not binding on the defendants unless the conspiracy had been established or the admission tended to so prove. The admission was made by Foreman long after the criminal proceeding was at an end. The conviction of the plaintiff of the criminal charge was the object of the conspiracy. This had failed, and the conspiracy had ceased to exist when the object intended to be accomplished had failed. Concede that Foreman and the defendants were conspirators, we understand the admission of one, to be binding on the others, must be made during the existence of the conspiracy and in aid of the common design.

In 3 Greenl. Ev. § 911, it is said: “The evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design; what was said or done by them before or afterwards not being within the principle of admissibility.” See, also, State v. Westfall, 49 Iowa, 328. We think the court erred in the admission of the evidence aforesaid.