"But in this case I shall not do so," said the court. "I shall submit it to you free from expression of my own judgment. Your decision shall be the last and only one on the question of fact."
He then explained the law of conspiracy at considerable length, after presenting a brief digest of the substance of the indictment. He announced that it was unnecessary to prove explicit agreement to enter a conspiracy against the defendants if there was circumstantial evidence that such a conspiracy existed, judged by the facts and the actions of the defendants.
"Mere passive knowledge of the criminal activities of other persons is not sufficient to establish a conspiracy," he instructed. "Some participation, coöperation, must be shown to establish the connection of any defendant, and by evidence of fact and circumstances independent of the declarations of other people,—that is, by evidence of the defendants' own acts. Until such evidence is introduced, the defendants are not bound by the declaration or statements of others. But after it is shown he is a member of the conspiracy, he is so bound, providing the acts are in furtherance of the common purpose."
The court also instructed that if any defendants entered the conspiracy after it started, knowing its purpose, they were equally guilty as if they had been of those who originally conspired, but he tempered this by suggesting that they might all have been guilty of minor conspiracies in different places, and he stated that if these were not related to a common purpose, they were not guilty under the indictment. He also announced that they might all be guilty of the acts of violence set forth in the indictment, and yet, if these were not related to a common conspiracy, they were not guilty in the charge in the case.
Both sides professed satisfaction with the instructions. The sentences of the Court sent Haywood and fourteen others, his principal aids, to the penitentiary for twenty years. Thirty-three men got ten years, the same number got five years; twelve men got a year and a day, two men got off with two days in jail, and two had their cases continued. There was well nigh a train load of them that started for Leavenworth federal penitentiary the next day.
