Opinion of the Court-Quarles, J. man] in April last ?" And, "What was said in said conversation, by Mr. Hinchman, in regard to the union?" As we have heretofore remarked, the evidence before the jury upon which the defendant was convicted is not before us-only such portions as tend to elucidate the exceptions of the defendant taken during the trial. However, the small amount of testimony before us, and the instructions of the court to the jury, show that the case was tried upon the part of the state upon the theory that the members of the miners' union in Shoshone county entered into a conspiracy to drive from the employment of the Bunker Hill and Sullivan Mining and Concentrating Company, by intimidation, force, and threats of violence, all nonunion employees; that the defendant was one of a large number of conspirators who participated in the unlawful object and purpose of the conspiracy; that in the doing of the unlawful act the destruction of said mill was effected, and the deceased, Cheyne, was killed. The testimony of the witness Hardy was introduced by the state as tending to show such conspiracy. The answers of said witness to the above two questions are as follows: To the first one: "Yes, sir." To the other: "Well, he said, 'I guess we will win it out' (meaning the strike). And he said he would not say anything about it; let it lay for a few days; get some help there and do the thing up; but they did not want the Bunker Hill to know that they was going to do anything, because they would cut off the air that run the machines in the Last Chance, the air being supplied from the Bunker Hill. He said he would get help up the canyon; that they were going to work for a few days; that they would get help from above; there would be so many detailed to help the matter out; he would go on to work. And then he went away, and I saw him no more. He said about twenty-five would be detailed from the canyon and neighborhood." This evidence might or might not be competent. The declaration of one conspirator, the conspiracy being established, while he is acting in furtherance of the common design, is competent evidence against his co-conspirators; and the declaration of a conspiracy during the pendency of the criminal enterprise, with reference to the common object thereof, is competent against his co-conspirators. Opinion of the Court-Quarles, J. Whether the alleged conspiracy was established, and, if so, whether the defendant and the said Hinchman were members of such conspiracy, we are unable to tell, in the absence of the testimony. The appellant, to obtain a reversal, must affirmatively show error by the record. We cannot presume error where none is shown. We must therefore presume that the lower court acted correctly in admitting the said evidence. The nineteenth specification of error specifies the giving of instructions numbered 28, 34, 36, 38, 39 and 47 as error. Said instructions are as follows: "No. 28. An act done by a party to an unlawful conspiracy in furtherance of, and naturally flowing from, the common design, is the act of each and all of the conspirators, even if the identity of the conspirator who did the act be not established; and, where murder is committed as the result of a conspiracy, each one of the conspirators is guilty, even though he was not present at the place of the crime, if he aided, abetted or encouraged the commission of the unlawful acts resulting in the crime charged." "No. 34. And if you believe in this case, beyond a reasonable doubt, that the defendant aided, abetted, advised or encouraged the killing of James Cheyne, as charged in the indictment, or aided, abetted, advised or encouraged such unlawful acts as had a tendency to destroy life and, as a result of such aiding, abetting, advice or encouragement, the said James Cheyne was killed, as charged in the indictment, then he is guilty; and it would be immaterial whether he was actually present at the killing or not." "No. 36. On the other hand, even though you believe from the evidence, beyond a reasonable doubt, that a conspiracy existed to destroy the mill belonging to the Bunker Hill and Sullivan Mining and Concentrating Company, and by force and violence to interfere with and drive from their employment the nonunion employees of the said company, and that in pursuance of such conspiracy such mill was destroyed, and James Cheyne was killed, yet, unless you are convinced, beyond a reasonable doubt, that the defendant was a member of such conspiracy, and advised, encouraged, aided, or abetted therein, you should find him not guilty." "No. 38. If you believe from the evidence, beyond a reasonable doubt, that the defendant advised, encouraged or Idaho, Vol. 7—16 Opinion of the Court-Quarles, J. directed an unlawful act which had a tendency to destroy life, he cannot escape responsibility by quietly withdrawing at the time of the commission of such unlawful act. He must notify the other members of the conspiracy of his intention to withdraw. Neither can he escape responsibility by remaining away from the actual commission of the crime after the same had been encouraged or advised by him, if you find the same was so encouraged or advised. If, therefore, you should find from the evidence, beyond a reasonable doubt, in this case, that the defendant advised and encouraged, aided or abetted, in the killing of Cheyne, or if he advised, encouraged, aided or abetted such unlawful acts as had a tendency to take human life, and as a result of such advice and encouragement said Cheyne was killed, then the defendant is as guilty as though he took the deceased's life with his own hand. No. 39. 1 further instruct you that if you find from the evidence, beyond a reasonable doubt, that a conspiracy existed, and that the defendant was a member of such conspiracy, or aided, advised, or encouraged the same, and that as a result of such conspircy the life of James Cheyne was taken by a member of such conspiracy, then I instruct you that, whatever crime or grade of crime the conspirator who caused the death of said James Cheyne was guilty of, the defendant would be guilty of the same crime or grade of crime, as the act of one is the act of all." "No. 47. It is lawful for miners to form miners' unions and associations for the betterment of their condition, and to preserve and advance the scale of wages paid to said miners by all proper and legal means, and to solicit others to join such organization. For the accomplishment of such legal business they may refuse to work, if they see fit, and persuade and solicit others so to do. They may lawfully aid striking miners by advancement and contribution of money and by all lawful means, and when so doing they are acting within the law; and no member of such organization who has only acted as a member of such association in the accomplishment of its lawful business can be held responsible for the acts of such association or union in violation of law, unless he consented or advised or aided or abetted therein, or in some manner intentionally contributed to said unlawful act.” Opinion of the Court-Quarles, J. The principal objection urged against these instructions by the appellant is that the words "aid, abet, counsel and advise" are used disjunctively. This, it is claimed, is, under section 7697 of the Revised Statutes error. Said section is as follows: "The distinction between an accessary before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission though not present, shall hereafter be prosecuted, tried and punished as principals, and no other facts need be alleged in any indictment against such an accessary than are required in an indictment against his principal." In support of the appellant's contention we are cited to one authority, viz., People v. Compton, 123 Cal. 403, 56 Pac. 44. In this case, the court, at page 412 of 123 Cal., and at page 48 of 56 Pac. says: "The court further instructed the jury that the distinction between an accessary before the fact and the principal in case of a felony is abrogated, and all persons concerned in the commission of a felony, whether they directly committed the act constituting the offense or aided or abetted in its commission, though not present, shall be prosecuted, tried and punished as principals.' As to this instruction, it is sufficient to say that it charges in the disjunctive that one who either aids or abets is guilty, when the language of the Penal Code (section 971), in consonance with justice, required that one shall both aid and abet. This precise error has been recently considered in the case of People v. Dole, 122 Cal. 486, 55 Pac. 581." This case was decided in January, 1899. The case of People v. Dole, was decided in November, 1898. In the latter case, People v. Dole, 122 Cal. 486, 68 Am. St. Rep. 50, 55 Pac. 581, the court, speaking through. Beatty, C. J., at page 492 of 122 Cal., page 55 of 68 Am. St. Rep. and at page 584 of 55 Pac. said: "The trial court, in submitting the case to the jury, gave the following instruction: 'If you believe from the evidence, beyond a reasonable doubt, that the defendant committed the offense charged in the information, or aided, abetted, or assisted any other person or persons to commit the same, then you should find the defendant guilty.' This instruction is Opinion of the Court-Quarles, J. clearly erroneous. Aside from the person who directly commits a criminal offense, no other is guilty as principal unless he aids and abets. (Pen. Code, secs. 31, 271.) A person may aid in the commission of an offense by doing innocently some act essential to its accomplishment; and this is especially true in regard to the crime of forgery, for he may pass the forged instrument without knowledge that it is forged. The word 'aid' does not imply guilty knowledge or felonious intent, whereas the definition of the word 'abet' includes knowledge of the wrongful purpose of the perpetrator, and counsel and encouragement in the crime. The error in the instruction is therefore clear, and it cannot be held that it is harmless error to instruct the jury that they must convict upon proof of a fact which does not necessarily imply guilt. It was certainly possible for the jury to have found consistently, with the evidence in this case, that defendant did not forge or raise the check himself, but that it was forged by some other person, and that his only connection with it was to pass it to the loan and trust company after receiving it from the forger, and without any knowledge of its spurious character, in which case he would have been innocent of any crime. But the court, at the request of the defendant, instructed the jury as follows: 'If the evidence does not establish beyond a reasonable doubt that the defendant made or altered or forged or counterfeited the check in question, or any part thereof, with intent to defraud another, and if the evidence does not establish beyond a reasonable doubt that the defendant uttered or published or passed as true and genuine the said check, knowing the same to be false or altered or forged or counterfeited, with intent to prejudice or damage or defraud any person, then the mere possession by the defendant of the said check, and his indorsing and negotiating the same, is not sufficient, standing alone, to convict; for proof of the mere possession and negotiating of a forged check is insufficient to convict a defendant of forgery, in the absence of a guilty intent or guilty knowledge.' This specific instruction on the precise point affected by the error above noted in the charge of the court, we think, cured the error; for, construing the two instructions together, the jury could not have failed to understand that merely aiding or assist |