On the petition for a rehearing, Chief Justice McCANDLESS, Judge LOGAN, and myself are of the opinion that the petition should be sustained, and the judgment herein reversed, because of the lower court's action in giving the conspiracy instruction complained of. For that reason, although we concur in the original opinion, in so far as it holds that intoxicating liquor, although illegally possessed, is yet the subject of larceny, we must dissent from it in so far as it upholds the lower court's action in giving the conspiracy instruction.

The majority opinion sets out in full the indictment in this case. It also sets out fully the facts and evidence as developed on the trial. Perhaps I should add to its statement of the case the fact that the only instruction given on the trial, aside from the usual reasonable doubt instruction, was the conspiracy instruction in question. The trial court was evidently under the impression that the evidence wholly failed to show that the appellant actually committed the robbery, in which doubt he is upheld by the record, and further that the evidence wholly failed to show that the appellant was so near aiding, assisting, and abetting Gagnon, who the evidence shows did commit the robbery, as to be a joint principal with him, in which latter doubt it is questionable whether the record bears him out or not. At all events, the lower court gave no instruction on either of these theories of *Page 670 the case, but instructed the jury solely, in substance, that if it believed beyond a reasonable doubt that the appellant and Gagnon entered into a conspiracy to commit this robbery, and pursuant to this conspiracy and while it was still existing Gagnon went forth to commit and did commit the robbery, then it could convict the appellant of the offense charged in the indictment. It will be noted that, under this instruction, appellant could have been convicted, although the jury may have believed his alibi, and that he was in Louisville, some 40 miles away from the scene of the robbery, at the time of its commission. Probably the jury did so believe, because its verdict, which the court changed, was that it found the appellant guilty, not of robbery, nor of aiding or abetting, but of conspiracy.

To my mind, the lower court was not justified in thus instructing, either by reason or precedent. The indictment in this case charges the appellant and Gagnon with the offense of robbery. It then tells how they committed this crime. Clearly and unambiguously, it states that Gagnon and others robbed Vittitoe, with the appellant aiding, assisting, and abetting, being then and there present, or so nearly so as in law and in fact to constitute him a joint principal. There is not a single allegation in this indictment from which appellant would know that he could be convicted of this offense, although he may have been 40 miles away at the time of its commission.

Subsection 2 of section 122 of the Criminal Code, which provides what an indictment must contain, reads: "A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of commonunderstanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case." (Italics mine.)

This section of the Code requires a statement of the acts constituting the offense, not in technical language, or in words pregnant with legal conclusions from which an astute lawyer might deduce what the commonwealth is going to prove, but in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. There is a reason for this requirement, and it is because the framers of the Code, in accordance with a basic rule of fair play, to *Page 671 which even an undoubted offender is entitled, if mankind is to preserve its own self-respect, intended that the accused should know on what facts — not evidence of facts, but just upon what facts — the commonwealth relied to establish his guilt, to the end that he might prepare his defense accordingly. Thus in Commonwealth v. Jarboe, 89 Ky. 143, 12 S.W. 138, 11 Ky. Law Rep. 344, we said: "The material averments of an indictment must be proven substantially as charged; but the reason for this is that the accused may have notice and opportunity to prepare his defense."

I will not multiply authority on so elementary a proposition. Now the indictment herein question, fairly construed as a whole, charges appellant with the commission of this crime by aiding and abetting Gagnon, being then and there present, or so nearly so as to constitute him a joint principal. What would a person of common understanding conclude from this language in the indictment? I challenge my Brethren of the majority to read this indictment to the first 100 men they meet. I am confident the overwhelming majority of such men would be astonished, if they were told that this indictment also charged appellant with a conspiracy, and that on his trial he could be convicted, although he was 40 miles away from the scene of the crime. It would never occur to them that the appellant would have to be prepared to defend himself, beyond showing that he was not present at the scene of the crime, nor so nearly so, aiding, assisting, and abetting, as in fact to make him a joint principal with Gagnon. Surely criminal pleadings should receive no more liberal interpretation than civil pleadings; and with the latter it is settled that the pleader is confined to that which he charges. To illustrate: It is settled that in negligence cases, if the plaintiff pleads general as well as specific acts of negligence, he is bound by the specific acts he pleads, and, if he fails to establish them on the trial, he may not recover by relying on his plea of general negligence. It was so held in two recent opinions of this court, that of L. N. v. Morgan's Adm'r, 225 Ky. 447, 9 S.W.2d 212, and that of I. C. R. R. v. Cash's Adm'x, 221 Ky. 655, 299 S.W. 590.

In the case before us, the commonwealth specified in what manner the appellant was charged with the commission of this offense. It should be held to the manner charged. We would unhesitatingly so hold in a civil case. Why should the rule be different in a criminal *Page 672 case? The committee of the American Law Institute in charge of restating the law of criminal procedure proposes that an indictment shall simply charge the accused with the offense, and that it shall devolve on the commonwealth's attorney to file a bill of particulars, setting out the manner in which the offense is claimed to have been committed. Suppose that such had been the procedure here: Ought any court, after the commonwealth's attorney had stated that he proposed to prove appellant's guilt by showing that he was present, or so nearly so, aiding and abetting, as to constitute him in fact a joint principal, permit him to abandon that case over appellant's objection, and establish the latter's guilt by proving a conspiracy? To me the answer is plain. But my Brethren say that, if two men are charged jointly with the commission of an offense, it is not too much to say that they ought to anticipate they will be charged with a conspiracy. The answer to that in this case is that, if the commonwealth had alleged the commission of this crime generally, as it might have done, there might be some substance in that position of the court. But the commonwealth did not do so, but specified particularly how the crime was committed, and to me it is going very far afield to prove that it was committed in an entirely different fashion.

Further, another answer to the court's position is that there can be a commission of an offense by two or more persons without a conspiracy between them. A conspiracy is essentially an agreement. A may on very short notice and without any previous agreement with B get into a light with X, and B may without any previous agreement with A aid and abet A in killing X in this fight and B may under such circumstances be a joint principal with A, without any conspiracy existing between them. So that a charge as in the instant indictment does not necessarily incorporate within itself a charge of conspiracy, and the manner in which the commonwealth particularized its commission excludes the manner in which the commonwealth relied for a conviction in this case. I believe, then, that on reason the lower court erred in giving the conspiracy instruction.

Am I bound to the contrary by precedent? The only authority to sustain the majority opinion from this jurisdiction is that cited in the majority opinion, except the case of Gilbert v. Commonwealth, 228 Ky. 19, 14 S.W.2d 194, decided after the original opinion in this case *Page 673 was handed down, and while it was pending on rehearing, and which relies on that opinion as its basis. I shall for the time being lay to one side the cases illustrated by Day v. Commonwealth, 173 Ky. 269, 191 S.W. 105, and Crenshaw v. Commonwealth, 227 Ky. 223, 12 S.W.2d 336, 346, which hold that, in proving an accused guilty of the offense charged in the indictment, the commonwealth may introduce statements made by others not in his presence, providing it first establishes prima facie a conspiracy between the accused and such others to commit the offense, and shall confine myself to the cases cited, involving the actual question here discussed.

The first case, historically, is that of Dorsey v. Commonwealth, 17 S.W. 183,13 Ky. Law Rep. 359, which, although, if my majority Brethren be correct, it established a very new principle not theretofore decided, was not deemed of sufficient importance to be officially reported. The facts in that case, as I read the record, are fully set out in the opinion, and the instruction upon which my majority Brethren pin their faith is set out at length therein. It will be noted that the instruction required the jury to believe that Dorseywas present, aiding and abetting Jackson, at the time thelatter shot and killed Burnett. It did not permit the jury to find Dorsey guilty solely on the ground that he and Jackson had conspired to kill Burnett, and that pursuant to that conspiracy, and while it was yet existing, Jackson had gone forth and killed Burnett. The only part the conspiracy playedin this Dorsey case was to establish the intent on the part ofDorsey and Jackson, and the instruction allowed the jury to deduce from the conspiracy, not the guilt of Dorsey of the offense, but only the intent of his act. The Dorsey case belongs to the line of cases illustrated by the Crenshaw case, and does not support the trial judge in his action in this case. The very excerpt quoted in the majority opinion shows that the Dorsey case was confined to this question of establishing the intent. I pass it by without further comment.

The next case was Twyman v. Commonwealth, 33 S.W. 409, 17 Ky. Law Rep. 1038, which is passed over by my majority Brethren without much comment. That case is a square holding that a conspiracy instruction where no conspiracy is charged in the indictment, is error. True it is, the case was reversed for other errors, but the court specifically stated that the conspiracy instruction was to be omitted on the next trial. It is no *Page 674 surprise that the Dorsey case was not mentioned in that opinion, since, as we have seen, the Dorsey case was not in point, and in no way conflicted with the Twyman case. In the Dorsey case, conspiracy was allowed to be considered only for the purpose of establishing intent. In the Twyman case, it was allowed by the trial court to be considered for the purpose of establishing guilt of the offense charged. The affirmance of the Dorsey case and the reversal of the Twyman case were entirely consistent.

The next case is Yontz v. Commonwealth, 66 S.W. 383, 384, 23 Ky. Law Rep. 1868, and an examination of the record discloses that it supports the majority opinion. The correctness of the conspiracy instruction is upheld in just these two sentences in the opinion: First, "We are unable to see the force of this contention;" (that is, a conspiracy instruction should not have been given because no conspiracy was charged in the indictment); secondly, "the averments of the indictment and the proof in the case were both sufficient to authorize the instruction complained of." In the absence of an elaboration of its reasons, which induced it to reach these conclusions, I am unable to follow the court in its decision.

The next case is Taylor v. Commonwealth, 90 S.W. 581, 583, 28 Ky. Law Rep. 819. My majority Brethren say that this case was reversed because the conspiracy instruction was not limited to a conspiracy between the accused and those named with him in the indictment. I do not so read the opinion. It says: "That it was error to instruct as to criminal conspiracy, when not charged in the indictment, was expressly decided in Twyman v. Commonwealth, 33 S.W. 409, 17 Ky. Law Rep. 1038. . . . Thecourt should have omitted the instruction as to conspiracy, and limited that as to aiding and abetting appellant's codefendants in the indictment." (Italics mine.)

I might add, also, that even under the instruction as given, and even if further limited to Taylor's codefendants, it required the jury to believe that Taylor was present, aidingand abetting his codefendants in the killing of Moore, before the jury could find him guilty. If Taylor had to be present, aiding and abetting, it is hard to understand what part the conspiracy played, unless, as in the Dorsey case, to establish intent, since Taylor under such circumstances would have been guilty, independent of a conspiracy. *Page 675

I agree with the majority opinion that the case of. Powers v. Commonwealth, 197 Ky. 154, 246 S.W. 436, is not in point, so that the last case we have to consider is that of Watts v. Commonwealth, 197 Ky. 101, 245 S.W. 884, 885. There the indictment charged a conspiracy to murder Maggie Allen, and the instruction warranted a conviction, if there was a conspiracy to effect a jail delivery in the course of the execution of which Maggie Allen was killed. The ease was reversed because one conspiracy was alleged and another proved. In the course of the opinion, the court, without analyzing the Dorsey or other cases, as it expressly stated, indulged in the obiter dictum quoted in the majority opinion, which I find hard to reconcile with this excerpt, culled from the earlier part of that opinion:

"The object of the indictment is to inform the defendant of the offense with which he is charged, and to that end the Criminal Code requires that 'the indictment must contain . . . a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended' (section 122, Criminal Code) and that 'the indictment must be direct and certain as regards . . . the particular circumstances of the offense charged, if they be necessary to constitute a complete offense' (section 124, Criminal Code). The requirement that the acts constituting the offense be given, or that the particular circumstances of the offense be stated with certainty, would be of little value to the defendant if the commonwealth could prove and have submitted to the jury acts and circumstances altogether different from those alleged. . . . There is no analogy between this case and cases of a slight variance between the instrument alleged and that proved. . . . However, the rule is confined to cases where the nature and character of the injury, and the manner and means of inflicting it, as proved, are practically and substantially, though not identically, the same as those alleged, and it is well settled that an indictment charging the killing in one manner will not support a conviction of killing in a different manner."

So, in the instant case, appellant had no idea that, when he was charged with being present, aiding and abetting, *Page 676 he could be convicted, when he was 40 miles away, because of a conspiracy not set out in the indictment. But, at all events, the Watts case is authority neither for my majority Brethren nor for me.

To sum up, then, the Dorsey case is not in point, and was not cited in any subsequent case in which this question was directly presented, and properly not cited, since it did not involve that question. The Yontz case is against me, but without any reasoning expressed that I can discuss. The Twyman and Taylor cases are with me, but are open, I admit, to the same objection of absence of reasoning as I make to the Yontz case. With but a slender majority in my favor of one case out of three, none of which are much reasoned out, I am willing to submit the issue on reason, and, as I think I have pointed out in the earlier part of this opinion, reason dictates the conclusion that the lower court erred in the conspiracy instruction.

I am not unmindful of the Day, Crenshaw, and like cases, which I stated I would take up after my discussion of the line of cases headed by the Dorsey case. To repeat, the Day, Crenshaw, and like cases hold that, when prima facie proof of a conspiracy has been introduced, then statements, etc., of one of the alleged conspirators may be introduced in evidence against the accused, to establish his guilt of the crime charged in the indictment. As said in the Crenshaw case: "To apply it (that is, the stated principle) as a rule of practice cannot in slightest degree prejudice the right of defendant, since, as we have pointed out, the testimony is but a method ofproving the necessary element to establish the required malicefor the commission of the charged offense." (Italics mine).

Or, to express it more broadly, it is but a method of proof to show that the defendant committed the offense charged in the indictment, and as charged in the indictment. The accused has never been entitled as a matter of absolute right to know how the commonwealth was going to prove the case it had charged. It is no answer to the production of an eyewitness for the accused to say that he did not know there was an eyewitness, and the commonwealth did not tell him that it had an eyewitness. He must expect the commonwealth to prove its case by any competent evidence. Evidence of conspirators of the kind mentioned is always admissible against the accused. Indeed, the principle is not confined to criminal *Page 677 cases. Thus in Jones on Evidence, sec. 254, we find, where several jointly attempt to accomplish "a fraud, the declarations of one of them, made during the progress and in the prosecution of the joint undertaking, or accompanying and explaining acts done in furtherance of it, are evidence against the others. Thus, in an action by a woman for indecent assault, the defendant may introduce evidence of statements by the plaintiff's husband, tending to show that the action was brought to carry out a scheme contrived by them for extorting money."

The doctrine of the Orenshaw and like cases rests on principles of evidence, and not of criminal procedure. The accused, under the principles of criminal procedure of the Code and of fair play, has a right to assume that the crime and manner of its commission is as stated in the indictment, and that he will not be called upon to defend against anything else. To me the distinction between the two lines of cases is clear and plain.

I am advised that the only other jurisdiction which follows the rule adopted by the majority opinion is that of Georgia. I believe the rule to be unsound in principle and unsupported by controlling authority. For that reason, I must dissent from the majority opinion, in so far as it holds the conspiracy instruction in this case was not erroneous.

I am authorized to state that Chief Justice McCANDLESS and Judge LOGAN concur in these views and this dissent.