Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Harold P. Hale, for Appellant.
District Attorney, for Respondent.
By the Court, Coleman, J.:
B. E. Kuhl, Ed. Beck, and Wm. M. McGraw were jointly charged with the crime of murder. On motion, separate trials were granted the defendants. Defendant
Beck (appellant) was convicted of murder in the first degree, and appeals.
Upon the trial defendant McGraw was called as a witness in behalf of the state, and testified relative to certain statements alleged to have been made to him by appellant. It is insisted that the court erred in overruling the objection of counsel for defendant to the testimony of the witness mentioned. For an understanding of the points urged, we quote from the brief of counsel for appellant:
The testimony of McGraw consisted substantially of the following: FirstThe witness testified that appellant had secured from him a certain gun, which gun he later identified as being the one in evidence in the case. SecondThat at the time of securing the gun appellant had told witness that he was going hunting with it. ThirdThat upon the following day appellant had told witness that he (appellant) and his partner, or rather they,' were going to hold up the mail stage, and had it all fixed with the stage driver; that it was all cut and dried.' FourthThat appellant told witness to keep his mouth shut or he would kill him. FifthThat later in the evening of the day of the crime, about 8 o'clock, witness was called out of a saloon by appellant, and told: She's all off; the trick is turned. The stage is held up, and the driver's head blown off.' That in response to the question, Who did that?' appellant answered Ben' (Kuhl). That appellant had told witness that if he said a word he would kill him.
1. The first point made by counsel for appellant is that the conspiracy had not been proven prima facie before the introduction of the evidence showing statements of appellant. As to this contention, we may say that if the conspiracy was thereafter shown by the evidence to have existed, it was not reversible error to admit evidence of the statements at the time it was received. State v. Ward, 19 Nev. 297, 10 Pac. 133.
2. The second contention urged upon our consideration is that the declaration urged upon our consideration is that the declaration made by appellant, as testified to by McGraw, shows no act done in furtherance
of a conspiracy or forming a part of the res gestae. A reading of the outline of the evidence taken from the brief of counsel for appellant refutes this contention. It shows that appellant informed McGraw before the crime was committed that he and Kuhl were planning to rob the stage; that thereafter the crime of robbery as planned was committed, and that in the commission thereof the stage driver was murdered. The unqualified statement that the crime had been committed, in view of the previous statement of the contemplated robbery, is sufficient to connect appellant with the crime.
3, 4. It is next contended that appellant's statements to McGraw show nothing more than a knowledge that another was involved in a crime, and does not show an active participation or an express or implied ratification. This contention is without merit. The evidence shows that appellant was a party to the conspiracy to rob the stage, that the stage was in fact robbed, and that in the perpetration of the robbery the driver was killed. It is a well-known rule of law that all persons who are involved in a conspiracy to rob are guilty of murder if murder is committed by one of the coconspirators in the perpetration of the crime of robbery. People v. Vasquez, 49 Cal. 560; People v. Lawrence, 143 Cal. 148, 76 Pac. 893, 68 L. R. A. 193, and note; Conrad v. State, 75 Ohio St. 52, 78 N. E. 957, 6 L. R. A. (N. S.) 1154, 8 Ann. Cas. 966, and note; People v. Friedman, 205, N. Y. 161, 98 N. E. 471, 45 L. R. A. (N. S.) 55, and note; Reagan v. People, 49 Colo. 316, 112 Pac. 786; Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W. 961; Romero v. State, 101 Neb. 650, 164 N. W. 554, L. R. A. 1918b, 70, and note.
In State v. Mangana, 33 Nev. 519, 112 Pac. 693, alluding approvingly to State v. King, 24 Utah, 483, 68 Pac. 418, ...