McKee v. The State.

also be remembered, however, that the appellant was a man ripe in years and in experience, having been a merchant and trustee of his township. It must have seemed incredible to the jury that, with his age and experience, he did not comprehend that the whole business was a fraud from beginning to end. At all events, a jury of his own selection, who heard all the evidence, after careful direction by a competent court have pronounced him guilty. As there was competent evidence which satisfied the jury we can not disturb their verdict on the weight of the evidence.

It appeared in evidence that one William D. Bailey was employed as agent of the association of which the appellant was a member. Bailey was employed after the association had been organized, and during the progress of its business, for the purpose of aiding in the prosecution of its designs. He was permitted, over objection, to testify to certain alleged false representations made by him, and other members of the association, while carrying forward its business with farmers and others to whom sales of Bohemian oats were negotiated. Others, to whom these representations were made, were permitted, in like manner, to testify concerning the character of the representations. It is insisted that the court erred in admitting this testimony, because it appeared that the declarations of Bailey were made subsequent to the conspiracy charged in the indictment, and in the absence of the appellant.

The relation of Bailey to the accused, and to those engaged with him in the alleged conspiracy, having been satisfactorily established, his acts and declarations in furtherance of the common design, while the conspiracy continued, were admissible against his associates, even though such acts and declarations were done and made in their absence. Walton v. State, 88 Ind. 9; Williams v. State, 47 Ind. 568; Moore Crim. Law, sec. 348.

After the joint design was once fairly established, every act done in pursuance of the original purpose, whether by one

McKee v. The State.

or more of the conspirators, or by their agent, was a renewal of the original conspiracy.

When a common purpose to prosecute an unlawful scheme has been shown, the overt acts or declarations of any one, or all concerned, while engaged in the execution of such purpose, are admissible, as illustrating the design and establishing the character of the original confederacy.

One who employs an agent to assist in the execution of a criminal act, is equally guilty of the acts of the person employed, as if he had himself performed them. 1 Whart. Crim. Law, sec. 247.

The person so employed simply becomes a confederate in crime, and this is so whether he be employed at the beginning of the conspiracy or while it is in progress. The admissibility of the testimony of Bailey was in no wise affected by the fact that he was employed after the association was organized, or that the acts done and declarations made by him were done and made after its business was under way.

In one of its charges the court told the jury, in substance, that it was not essential to the formation of a conspiracy that there should have been any formal agreement between the parties to do the acts charged; that it would be sufficient if the minds of the parties understandingly met, so as to bring about an intelligent and deliberate agreement to do the acts and commit the crimes charged, although such agreement was not manifested by any formal words.

The law was well and accurately stated in the foregoing charge, and the objections urged against it can not prevail. Concurrence of sentiment, and co-operative conduct in an unlawful and criminal enterprise, and not formality of speech, are the essential ingredients of criminal conspiracy. Archer v. State, 106 Ind. 426 (432); 2 Whart. Crim. Law, sec. 1398. We have considered the other instructions, concerning which some merely suggestive criticisms are made. They

were not erroneous.

We have now examined all the alleged errors discussed in

Lyon et al. v. Davis et al.

the briefs. Our conclusion is that the appellant had a fair trial, without any intervening error, before an impartial jury. The judgment is affirmed, with costs.

Filed June 24, 1887.

No. 12,632.

LYON ET AL. v. DAVIS ET AL.

BILL OF EXCEPTIONS.-Statement that Evidence was "Offered" not Equivalent of "Introduced."—A statement in a bill of exceptions that the parties "offered the following evidence" is not the equivalent of a statement that the evidence was introduced or admitted.

SAME.-Must Show that it Contains all Evidence Adduced.--A bill of excep tions which shows on its face that it does not include all the evidence adduced and the agreements of the parties entered into at the trial, is substantially defective.

SAME.--Long-Hand Manuscript.-Certificate of Judge.--It is for the judge, and for him alone, to certify that the evidence set out in the long-hand manuscript is all the evidence given in the cause.

INSTRUCTIONS TO JURY.--Applicability to Evidence.-Practice.-Where the evidence is not properly in the record, no available question can be predicated upon the giving or the refusal to give instructions, the cor rectness of which depends upon the facts.

From the Vigo Superior Court.

C. F. McNutt, J. G. McNutt and P. H. Blue, for appellants. S. C. Davis, S. B. Davis, J. T. Hays and H. J. Hays, for appellees.

NIBLACK, J.-This was an action by John Davis and Benjamin Davis, partners, doing business under the firm name of John Davis & Sons, against John B. Lyon and Thomas B. Rice, partners in business in the name of Lyon & Co., upon an account for goods, wares and merchandise alleged to have been sold and delivered to the defendants.

The action was commenced in the Sullivan Circuit Court,

Lyon et al. v. Davis et al.

but the venue was changed to the superior court of Vigo county, where the cause was tried.

The plaintiffs obtained a verdict, and, over a motion for a new trial, a judgment for $438.35.

The only claim made for a reversal of the judgment is based upon the alleged insufficiency of the evidence to sustain the verdict, and the respective giving, and refusal to give, certain instructions.

The point is made that the bill of exceptions, purporting to contain the evidence, is not only informal, but is substantially defective, and that, for that reason, the evidence is, in legal contemplation, not in the record.

There is copied into the record what is assumed to be an original long-hand manuscript of the evidence as taken at the trial and as written out by an official reporter. This manuscript, after giving the title of the cause, proceeds: "Be it remembered that upon the trial of this cause the plaintiffs, to sustain the issue on their part, offered the following evidence."

Then follows the examination and cross-examination of a considerable number of witnesses, interspersed with documentary evidence, connected with which several blank spaces remain unfilled.

After the plaintiffs seemingly conclude, the manuscript continues: "The defendants, to sustain the issue upon their part, offered the following evidence," proceeding thence to give the examination and cross-examination of several witnesses, and to set out certain documentary evidence. The manuscript closes with the statement made by the official reporter, "And this was all the evidence given in the cause." This is followed by a certificate from the official reporter that the manuscript contains a true and complete report of the evidence in the cause as taken in short-hand and afterwards written out by her.

Then comes the certificate of the judge who tried the cause, VOL. 111.-25

Lyon et al. v. Davis et al.

in these words: "And the defendants now, within the term and the time allowed, present this, their bill of exceptions, which is now signed and sealed by the court, and ordered to be made a part of the record. Witness my hand and seal this, the 24th day of November, 1884."

The bill of exceptions, to which the certificate of the judge was so attached, is informal: First. Because the caption and introductory part were made by the official reporter, and entered upon the long-hand manuscript instead of comprising a portion of the judge's statement independently of, and prefatory to, the inclusion of such long-hand manuscript. Secondly. Because the statement in the long-hand manuscript that the parties respectively "offered the following evidence," is not the equivalent of an assertion that the evidence was either introduced or admitted. Fellenzer v. Van Valzah, 95 Ind. 128; Garrison v. State, 110 Ind. 145; Central Union Telephone Co. v. State, ex rel., 110 Ind. 203.

The bill of exceptions is also substantially defective: First. Because it shows on its face that it does not include all the evidence adduced, and the agreements of the parties entered into, at the trial. Collins v. Collins, 100 Ind. 266; Thames Loan, etc., Co. v. Beville, 100 Ind. 309; Beatty v. O'Connor, 106 Ind. 81.

Secondly. Because the judge did not certify that the evidence set out in the long-hand manuscript contains all the evidence given in the cause. Marshall v. State, ex rel., 107 Ind. 173; Wagoner v. Wilson, 108 Ind. 210.

It is the certificate or signature of the judge which gives verity to the matters contained in a bill of exceptions, and it is upon him, and upon him alone, that this court must rely for the assurance that the bill of exceptions contains all the evidence given at the trial. It follows that the evidence in this case is not properly before us, and that we are, hence, unable to consider any question arising out of or resting upon the evidence.

The principal objection urged to certain instructions which