ties to keep a well-bound book, in which they shall record the marks and brands of each individual who may apply to them for that purpose, noting in every instance the date on which the brand or mark is recorded; which record shall be subject to the examination of every citizen of the county at all reasonable office hours, free of charge for such examination."

Article 4561 of the Revised Statutes: "No brand except such as is recorded by the officer named in this chapter shall be recognized in law as any evidence of ownership of cattle, horses, or mules upon which the same may be used."

Whether New Mexico has or has not a statute with such provisions as these matters not, for, unless recorded as required by our statutes, the brand on the animal shall not be recognized by our law as any evidence that the animal bearing it belongs to any person. The common law has nothing whatever to do with this question, it being settled by our statutes. It is not necessary for us to discuss the question as to whether a brand properly recorded in another state or territory would in the courts of this state be evidence of ownership.

Second explanation: If an unrecorded brand is not evidence that A owns the animal that bears it evidently it is no evidence that A has the management and control of the animal. This proposition is self-evident.

Third: That appellant failed to claim from any one authority to kill the animal does not make an unrecorded brand evidence of ownership. The court should have sustained appellant's objection to the testimony of Carrington; and, for the same reason, the evidence of J. M. Crowder and A. L. Crowley should have been excluded. Bills of exceptions numbers 16 and 17.

Bill number 18: McLish, an Indian police-officer, testified that about the seventeenth day of July, 1892, he arrested Henry Harding in the Indian Territory, and, in making the arrest, he and said Harding exchanged pistol shots. Counsel for appellant objected, because if there had once been a conspiracy between Harding and appellant it had ended, etc.

Bill number 19: The state also proved by McLish that when he arrested Harding he (Harding) stated that he did not expect to be caught so soon; that he expected to leave there that night.

Bill number 28: The state introduced in evidence two cer

tified copies of bail bonds of Henry Harding, for his appearance before the examining court of Donley county on the sixth day of July, 1892, and certified copies of judgments declaring forfeitures of said bonds. To this bill the court appends the following explanation: "The evidence was admitted on the hypothesis that the conspiracy was not at an end, the cattle not having been driven to the 'Rocking Chair' pasture or sold." Appellant and Harding were arrested on or about the third day of July, 1892, and neither of 578 these parties was engaged in driving the herd to Rocking Chair pasture when Harding was arrested, or when his bonds were forfeited. What is the rule? "Confessions of others. As to the prisoner's liability to be affected by the confessions of others, it may be remarked, in general, that the principle of the law in civil and criminal cases is the same. In civil cases, as we have already seen, when once the fact of agency or partnership is established, every act and declaration of one, in furtherance of the common business, and until its completion, is deemed the act of all. And so on in cases of conspiracy, riot, or other crime perpetrated by several persons, when once the conspiracy or combination is established the act or decla ration of one conspirator or accomplice, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to assent to or commend what is done by any other in furtherance of the common object. Thus, in an indictment against the owner of a ship for violation of the statutes against the slave trade, testimony of the declaration of the master, being part of the res gesta, connected with acts in furtherance of the voyage, and within the scope of his authority as an agent of the owner in the conduct of the guilty enterprise, is admissible against the owner. But after the common enterprise is at an end, whether by accomplishment or abandonment is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. If it were made in the presence of another, and addressed to him, it might, in certain circumstances, be receivable, on the ground of assent or implied admission. In fine, the declarations of a conspirator or accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts for which the others are responsible; but

not when they are in the nature of narratives, descriptions, or subsequent confessions."

If it ever existed, the conspiracy was at an end, though the cattle were taken to Rocking Chair pasture. The members had been arrested, and Harding had forfeited his bond, and was in the nation, doing nothing whatever in aid of the common design.

What a conspirator does or says may be evidence against his co-conspirator, and it may not. This is the case, though the conspiracy may not be at an end. If ended by accomplishment or abandonment, and if the abandonment be voluntary or compelled, the acts and declarations of a conspirator are not evidence against any person but himself. Though the object of the conspiracy be not ended (accomplished), the acts and declarations of a co-conspirator are not evidence against another co-conspirator, unless they are in furtherance of the common design.

Application: If the exchange of shots between McLish and Harding, or Harding's flight to the Indian Territory, with consequent forfeiture of 579 his appearance bonds, were for the purpose of or tended to move, or aided in moving, the cattle to Rocking Chair pasture, then these acts might be evidence against McKenzie, his supposed co-conspirator. But how these acts could tend to or have that effect is beyond our comprehension. The flight of one co-conspirator is not evidence of guilt against another: People v. Stanley, 47 Cal. 113; 17 Am. Rep. 401.

The judgment of the court below is reversed and case remanded.

SIMKINS, J., absent.

INDICTMENT.-JOINDER OF FELONIES: See State v. Warren, 77 Md. 121, 39 Am. St. Rep. 401, and note, with the cases collected; also the monographic note to Ben v. State, 58 Am. Dec. 238.

CONSPIRACY-ACTS AND DECLARATIONS OF CONSPIRATOR AS EVIDENCI AGAINST THE OTHERS.—An act or declaration of one of several conspirators in the prosecution of their enterprise is considered the act of all: Spies v. People, 122 Ill. 1; 3 Am. St. Rep. 320, and note at pages 478 and 489; and is admissible in evidence against them: Clark v. State, 28 Tex. App. 189; 19 Am. St. Rep. 817, and note; Martin v. State, 89 Ala. 115; 18 Am. St. Rep. 91, and note; Commonwealth v. Tivnon, 8 Gray, 375; 69 Am. Dec. 248, and note; Johnson v. State, 29 Ala. 62; 65 Am. Dec. 383, and note; Tanner v. State, 92 Ala. 1; Knower v. Cadden Clothing Co., 57 Conn. 202; Jolly v. State, 94 Ala. 19. The acts and declarations in pursuance of the common purpose may be given in evidence against all only when such acts and declarations AM. 8T. REP., VOL. XL. -51

are confined to the time intervening between the beginning and ending of the conspiracy and said and done in the presence of the other conspirators with their knowledge and consent: People v. Parker, 67 Mich. 222; 11 Am. St. Rep. 578; and the declaration of a conspirator after the consummation of the conspiracy is not evidence against the other conspirators: State v. Brady, 107 N. C. 822; People v. Dilwood, 94 Cal. 89; Shelby ▼. Commonwealth, 91 Ky. 563.

LARCENY BRINGING STOLEN PROPERTY INTO STATE.-If a person com. mits larceny in one state and carries the goods stolen into another state, and there makes a removal of them, having the intent to steal, he may be indicted for larceny in the latter state: State v. Newman, 19 Nev. 48; 16 Am. Rep. 3; Commonwealth v. White, 123 Mass. 430; 25 Am. Rep. 116, and note. One may be indicted in one state for larceny by stealing goods in another state and bringing them into the former: Worthington v. State, 58 Md. 403; 42 Am. Rep. 338, and note; State v. Cummings, 33 Conn. 260; 89 Am. Dec. 208, and note; State v. Ellis, 3 Conn. 185; 8 Am. Dec. 175; State v. Under• wood, 49 Me. 181; 77 Am. Dec. 254, and note; State v. Seay, 2 Stew. 123; 20 Am. Dec. 66, and note. The contrary doctrine is maintained in the following cases: State v. Brown, 1 Hayw. (N. C.) 100; 1 Am. Dec. 548, and note; People v. Loughridge, 1 Neb. 11; 93 Am. Dec. 325, and note; and Lee ▼. State, 64 Ga. 203; 37 Am. Rep. 67, and note. The larceny of goods in a foreign country and bringing them into Massachusetts does not constitute larceny in Massachusetts: Commonwealth v. Uprichard, 3 Gray, 434; 63 Am. Dec. 762, and note; and the same rule prevails in Ohio: Stanley v. State, 24 Ohio St. 166; 15 Am. Rep. 604. A statute providing that a person who shall bring into the state property which he has feloniously stolen in another state shall be guilty of larceny, and punished accordingly, is constitutional: People v. Williams, 24 Mich. 156; 9 Am. Rep. 119; Hemmaker v. State, 12 Mo. 453; 51 Am. Deo. 172, and note.

CASES

IN THE

SUPREME COURT

OF

TEXAS.

MCDONALD V. INTERNATIONAL AND GREAT NORTHERN RAILWAY COMPANY.

[86 TEXAS, 1.]

RAILWAY CORPORATIONS-SPEED OF TRAINS.-The law does not impose any rule as to the rate of speed of passenger trains. Hence the fact that in passing a small station such train was run at a high rate of speed cannot be regarded as negligence per se. On the other hand, it is always proper to submit to the jury the question, whether, under the circumstances of a particular case, the running of a train at a high rate of speed was or was not negligent.

RAILWAY CORPORATIONS-ACCIDENTS-FAILURE TO RING THE BELL.Where the servants in charge of a train fail to ring the bell or blow the whistle, and such failure could not have been the cause of the acci dent, it is proper to so instruct the jury, and to tell them that the railway corporation cannot, because of such failure, be held answerable for the accident.

NEGLIGENCE IS the failure to do what a reasonable and prudent person

would ordinarily have done under the circumstances, or the doing of what such a person would not have done under those circumstances. This definition does not exclude the idea that one may act upon appear

ances.

NEGLIGENCE-CONTRIBUTORY and Gross.-SLIGHT CONTRIBUTORY NEGLI GENCE of a person who is injured defeats his right to recovery though the defendant or his agents were guilty of gross negligence, provided the injury would not have been suffered except for the negligence of the plaintiff. This rule does not apply where the defendant or his servants discover the peril of the person subsequently injured, and do not use reasonable precautions to avoid injuring him. CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF DOES NOT PRECLUDE HIS RECOVERY WHEN the conduct of the defendant is wanton and willful,