text:
    THE STATE v. M. F. CARPENTER, Appellant.
    Division Two,
    February 2, 1909.
    1. INFORMATION: Burglary and Larceny. Both burglary and larceny may be charged in the same information in the same count, if in the commission of the burglary a larceny was also committed; and the jury, if the evidence so warrants, may convict of either offense.
    2. INSTRUCTIONS. Where the instructions given by the court fully covered the subjects embraced in the instructions requested by defendant, there was no error in refusing the instructions asked by defendant.
    3. EVIDENCE: Memorandum. A witness from whose tool housa defendant is charged with having stolen certain tools, and who the next day after the larceny made from memory a list of the tools taken from the house, may use such memorandum to refresh his memory as to the numerous tools that had been taken, whether the memorandum is offered in evidence or not.
    Appeal from Jackson Criminal Court. — Ho». Wm. H. Wallace, Judge.
    Abbirmed.

      Herbert 8. Hadley, Attorney-General, and F. O. Ferris, Assistant Attorney-General, for the State.
    (1) The information is sufficient in form and substance. R. S. 1899, sec. 1886; State v. Watson, 141 Mo. 338. It is well settled that burglary and larceny are two distinct offenses, that the two may be united in the same count, and that the jury may convict of either. R. S. 1899, sec. 1891; State v. Howard, 203 Mo. 600; State v. Owens, 79 Mo. 623; State v. Helms, 179 Mo. 280. (2) The instructions given fairly covered all the questions of law arising in the case necessary for the information of the jury in giving their verdict. State v. Sprague, 149 Mo. 415; State v. Turner, 106 Mo. 273; State v. Owens, 79 Mo. 629. The instruction, as to defendant’s recent possession of a part of the stolen property being presumptive evidence against him, properly declared the law. State v. Owens, 79 Mo. 624; State v. James, 194 Mo. 277; State v. Henderson, 212 Mo. 208. The court by its instructions having correctly and fully covered every phase of the case to which the testimony was applicable, did not err in refusing instructions asked by defendant. State v. Campbell, 210 Mo. 229: (3) The witness A. C. Harris was properly permitted to refresh his memory as to numerous tools which had been taken from the toolhouse by referring to a list thereof made by him from memory on the day following the burglary. There is no1 reason for refusing or discrediting testimony enumerating a long list of articles on the ground that the witness is enabled to remember the existence of the articles by seeing them named on a memorandum. The memorandum may have been prepared at the time of the fact therein recorded, or thereafter, while the facts were still fresh in the memory of the witness. It is the recollection, and not the memorandum, which is evidence. Ward v. Transfer Co., 119 Mo. App. 91; State v. Palmberg, 1991 Mo. 233; 2 Elliott on Evidence, secs. 855, 862, 863, 869; 1 Wigmore’s Evidence, sec. 735.
   FOX, J.

This is an appeal on the part of the defendant from a judgment of conviction in the criminal court of Jackson county, Missouri, of grand larceny.

On the 28th day of December, 1906, at the September term of the criminal court of Jackson county, at Kansas City, the prosecuting attorney filed, in open court, an information, properly verified, charging Harvey Adair and M. F. Carpenter with the crime of burglary in the second degree and grand larceny. The offense, as charged, consisted in breaking into a toolhouse belonging to C. A. Harris in Kansas City, and taking therefrom numerous carpenter tools, the property of divers persons, of the aggregate value of $113.55. On the 11th day of June, 1907, the defendant was duly arraigned and entered his plea of not guilty. On the 9th day of October, 1907, during the September term of said court, the trial of this defendant, M. F. Carpenter, proceeded. The testimony developed upon the trial of said cause tended to establish substantially the following state of facts:

On the 2d day of December, 1906, the firm of Harris & Hogue, contractors and builders, were engaged in constructing a livery barn for Eyler Brothers at 1712 McG-ee street in Kansas City, having in their employ several carpenters. They had there a small building on wheels, the property of A. C. Harris of said firm, which was used for the purpose of storing the tools of the workmen employed upon said building. At about five o’clock of that day, which was Saturday, the workmen on said building finished their day’s work and assembled their tools in said toolhouse, the door of which was locked by means of a staple, a hasp and a padlock. The next morning the door of said toolhouse was found open, the staple had been broken, and tbe lock removed and thrown away, and a large number of tools of said workmen were gone. On the same day, which was Sunday, two officers observed the defendant in an alley, in said city, carrying carpenter’s tools in his pockets and under his arms. As defendant recognized the officers, he turned and made rapid steps to get away, but they arrested him and took him to the police station. When they first asked defendant where he got the tools, he said they were his; later, however, he said he got them from a man by the name of Harvey Adair. On defendant’s person at the time of his arrest they found a pawn ticket, which had been issued to him the same day for carpenter’s tools. The officers learned the location of the room which then was occupied by Adair. For sometime prior to a few'days before that time, defendant had been occupying the same room with Adair. Under the bed in said room was found a chest of tools, and in the bed were found other tools, and at the pawnshops numerous tools were also- found, all of which tools, as thus found on defendant’-s person, those found in the room and those found in the pawnshops, were positively identified as being the property of the persons mentioned in the information. It is also shown in evidence that on said Sunday morning defendant was at said room.

Defendant introduced several witnesses whose testimony tended to prove that on Friday night before the Sunday afternoon in question, defendant went to Pitts-burg, Kansas, distant about one hundred and thirty miles, or about four or five hours’ ride by rail from Kansas City, and that he left Fort Scott for Kansas City after one o’clock on said Sunday morning, arriving at Kansas City about seven o’clock a. m. Defendant himself testified to the same effect, and he said that Sunday morning as he was walking down the street, soon after his arrival at Kansas City, he met a man named Smith with a bundle of tools, who stopped him and asked him if he knew where he conld pawn the tools. Defendant testified that he gave Smith some directions about pawn shops, but Smith made some excuse as to why he did not wish to go to the pawnshop, and defendant himself undertook to pawn the tools, and did pawn them for Smith. He admitted having been at the said room on that Sunday morning, where he met Harvey Adair and Smith, who had given him the package of tools to pawn. Defendant said that the three talked in the room for a time, when they loaded him up with tools and sent him out to pawn them and get more money with which to buy liquor. That was the load of tools he was carrying when arrested. He denied positively that he burglarized the toolhouse, or that he took and carried away the tools in question, and claimed that he never had heard of the burglary and stealing of the tools until after he was arrested. A signed statement made by the defendant was identified by him, and introduced in evidence by the State as follows :

“Kansas City, Mo., Dec. 3, 1906.
“My name is M. F. Carpenter. I am fifty years old. I am a painter. The last two weeks I have not been working any; my little boy has been sick. My boy is at his grandmother’s at Pittsburg, Kansas; he has been there about three.or four weeks. Yesterday I met a man at Eighteenth and Grand. I did not know the man’s name. I had met him once or twice at Tralle’s saloon. He was a little taller than me, and I think he had blue eyes. He had a package of tools; they were wrapped up' in overalls. It was Sunday morning about nine o’clock. He told me to take them down to the pawnshop and sell them and they would get a drink; for me to just sell them for the best I could get. He said he didn’t want to go to the pawnshop, because he had already sold some stuff there. I took the tools to the pawnshop twice, and got $2.50' altogether. He gave me fifty cents. This man gave me the package of tools I had on me when I was arrested, but I have not seen him since. I never asked him where he lived, or where he got the stuff. I make this statement because it is the truth. No threats or promises have been made to me. M. P. Carpenter. ’ ’

No evidence was offered by defendant as to his general good character.

At the close of the testimony the court fully presented the cause to the jury by its instructions and the cause was submitted to them and a verdict was returned by them finding the defendant guilty of grand larceny only, and assessing his punishment at two years in the State penitentiary.

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The appellant is not represented in this court; hence, we are not favored with any brief or even suggestions of any complaints of error during the progress of the trial.' However, in pursuance of the provisions of the statute which requires this court to examine the record to the end that it may be determined as to whether or not any substantial error was committed, we have carefully considered the disclosures of the record in detail and will give the legal propositions disclosed such attention as their importance requires.

I.

We have examined the information upon which this judgment rests and find that every essential element necessary to constitute the offense is charged in such, language as has frequently met the approval of this court. [R. S. 1899, sec. 1886; State v. Watson, 141 Mo. 338.]

The defendant in this cause was charged in the information with both burglary and larceny, and it has been uniformly held by this court that both of such offenses, while they may be separate and dis-. tinct, if in the commission of a burglary a larceny also be committed, both offenses under the provisions of section 1891, Revised Statutes 1899, may be charged in the same count, and the jury, if the testimony so warrants, may convict of either of such offenses. [State v. Howard, 203 Mo. 600; State v. Owens, 79 Mo. 619; State v. Helms, 179 Mo. 280.]

II.

We have carefully read and analyzed the instructions given by the court in this cause. We deem it unnecessary to reproduce them, and it is sufficient to say that they covered every phase of the case to which the testimony was applicable, and the jury were required to find every essential fact necessary to constitute the offense of which. the defendant was convicted. The jury were plainly told that they might find the defendant guilty of both burglary and larceny, or they might, under the evidence, find him not guilty of one of the offenses and guilty of the other.

After a careful analysis of all the instructions given in the cause we have reached the conclusion that they, in an extremely favorable light, presented the case to the jury in behalf of the defendant.

We have also given attention to the instructions requested by the defendant, and it is only necessary to say that the instructions as given by the court upon which this cause was submitted to the jury, fully covered the subjects embraced in the instructions requested by the defendant; hence there was no error committed by the court in refusing the instructions requested by the appellant.

HI.

We have directed our attention to the disclosures of the record as to the admission and rejection of testimony during the progress of the trial, and find that there were only two instances where exceptions to the admission of evidence were properly preserved, and there is no merit in either of such objections. The first one was an objection concerning the testimony of A. C. Harris as to the ownership of the tool-house. The questions propounded to Mr. Harris and his answers thereto were entirely appropriate, and the testimony was clearly competent. The other objection was an objection to this same witness, A. C. Harris, refreshing his memory as to the numerous tools which had been taken from the toolhouse by referring to a list thereof made by him from memory on the day following the burglary. This memorandum was not introduced in evidence, but the witness simply used it to refresh his memory as to the nature and character of the tools; then he proceeded to testify that those tools were in the toolhouse at the time of the burglary and were taken therefrom. This objection was clearly without merit, and there was no error committed by the court in overruling such objection.

IV.

We have indicated the evidence disclosed by the record upon which this cause was submitted to the jury, and that it furnishes full support to the verdict returned by them is too plain for argument. The evidence being entirely sufficient to support the verdict of the jury, and the court having fully and fairly presented the case to them by its instructions, and it not appearing from any other disclosures of the record that any error was committed during the progress of the trial, we see no escape from the conclusion that the judgment in this cause should he affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. SILAS DARLING, Appellant.
    Division Two,
    February 2, 1909.
    1. HOMICIDE: Conspiracy. If several persons conspire to do an unlawful act and death results to the person against whom the conspiracy was formed, at the hands of one of them, all are alike guilty of the homicide.
    2. -: -: Aid. He who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences that may arise from its perpetration.
    3. -: -: To Whip Another: Manslaughter. A defendant who entered into a conspiracy with his brother to whip and commit an assault upon deceased, and went along with his brother to aid him in that unlawful act, and was present when he assaulted deceased with an unlawful weapon and killed him, is a co-conspirator, though he may not have known his brother had the unlawful weapon and did not know that he had formed a design to kill deceased; and an instruction authorizing the jury to find defendant guilty of manslaughter in the fourth degree is not erroneous, but more liberal to him than he had a right to request.
    4. INFORMATION: Amendment: Without Verification. An amendment to the information in a murder case, after it was filed and verified, by inserting in one place, with leave of court, the word “deliberately” and in another the word “wilfully,” is allowable under the statute (Sec. 2481, R. S. 1899) authorizing an information to “be amended in matter of form or substance at any time by leave of court before trial;” and it was not necessary, after such amendment was made, that it he reverified. Where defendant was convicted of manslaughter only, the insertion of the word “deliberately” did not affect his rights.
    Appeal from Cooper Circuit Court. — Ho». Won. H. Martin, Judge.
    Affirmed.

      C. D. Corum for appellant.
    The instruction is palpably erroneous. Under it, all that the jury had to find in order to convict defendant was that he understood that his brother intended “merely to whip said Jeffress,” and that he went along to aid his brother in whipping Jeffress if it became necessary for him to lend his aid. This does not constitute manslaughter in the fourth degree, nor in any degree. If the jury had been called upon to determine that this defendant and his brother entertained a common intent to assault Jeffress, and that Jeffress was killed in the execution of such common-plan, by Ernest Darling, without resort by him to the use of a deadly weapon, then probably the instruction would have embodied the elements of manslaughter. But there is another rule of law, which we also recognize, and which is equally well settled, namely: That if two or more persons combine together to commit an unlawful act, and the common design does not contemplate the commission of a homicide, and is of such a nature that a homicide will not be the natural or probable result thereof, then participation in that design is not sufficient to make one liable for the homicide committed concurrently with the execution of the common plan by the fresh and independent act.of one of the conspirators acting outside of and foreign to the common design. (1) Defendant did not assault Jeffress, attempt to assault him, or encourage his brother to assault him; and unless Ernest Darling killed the deceased' in the attempt to execute a purpose common to both, then defendant in no event can be guilty of anything, and the question of common design must be left to the jury. White v. People, 1391 111. 149; Cortez v. State, 66 S. W. 459; Omer v. Commonwealth, 25 S'. W. 594; Cecil v. State, 72 S. W. 197; Easterlin v. State, 43 Fla. 565; State v. Ferney, 21 Pac. 213. (2) The court committed error in declaring, as a matter of law, that defendant was liable for the independent act of his brother in assaulting the deceased with a deadly weapon and that such act was the natural and probable outcome of an attempt “merely to- whip the said Jeffress.” This also was a question for the jury. McElroy v. State, 120' Ala. 285; Frank v. State, 27 Ala. 43; Bowers v. State, 7 S. W. 246 ; Powers v. Commonwealth, 67 S. W. 735 ; State v. Ferney, 21 Pac. 213; Lusk v. State, 2 So. 257. (3) Instruction 8, given by the court, is as bad as the instruction which we have just discussed. Indeed, it is worse. It permits the jury to convict defendant of a felony notwithstanding the principal may have had no- felonious intent, and permits the jury to find defendant guilty, regardless of whether Jeffress was killed or not. It, like the other manslaughter instruction, stands out in bold relief and does not refer the jury to any other instruction in the case. Under instruction 7 the jury were authorized to convict defendant if Ernest Darling had a felonious intent. Under instruction 8 the jury were authorized to convict the defendant if Ernest Darling-had no felonious intent. And under either instruction the jury were authorized to convict this defendant of a felony even though he had no felonious intent, and without requiring the jury to find that he had committed any act or acts which would justify the inference of felonious intent as a matter of law.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The court committed no error in the giving of instructions. Those given fully and fairly covered all the questions of law arising in the case, which were necessary for the information of the jury in giving their verdict. State v. Ernest Darling, 19-9 Mo.' 168; State v. Silas Darling*, 202 Mo. 150; State v. Bobbitt, 215 Mo. 10. (2) The instructions in reference to defendant’s being- present at the time Jeffress was killed for the purpose and with, the intention of aiding and abetting Ms brother, Ernest, correctly declared the law. 1 McClain on Criminal Law, secs. 204, 205; Wharton on Homicide, sec. 418; 4 Elliott on Evidence, sec. 2781; State v. Walker, 98 Mo. 95, 110. (3) The court did not err in giving instructions 7 and 8 on manslaughter in the fourth degree. State v. Ernest Darling, 199 Mo. 197; State v. Silas Darling, 202 Mo. 170. (4) Instruction 11, in respect to a conspiracy and the statements and acts of the conspirators, was properly given. State v. Ross, 29' Mo. 32; State v. Ernest Darling, 199 Mo. 199 ; State v. Bobbitt, 215 Mo. 10; 4 Elliott on Evidence, secs. 2941-3,
   GANTT, P. J.

This is the second appeal in this cause. The former appeal was decided at the October term, 1906, of this court, and reported in 202 Mo. 150. That appeal resulted in reversing the judgment and remanding the cause for a new trial.

At the October term, 1907, the defendant was again put upon Ms trial and convicted of manslaughter in the fourth degree, and Ms punishment assessed at imprisonment in the county jail for a period of twelve months, and from that sentence and judgment he has again appealed to this court.

The full statement of all the material facts will be found in the opinion of Judge Burgess on the former appeal. Much of the testimony, however, elicited on the first trial was eliminated on the last trial, and it will only be necessary to state for the understanding of the questions presented on this appeal the salient and controlling facts.

On the 13th day of March, 1905, Samuel Jeffress was killed at the county of Cooper by Ernest Darling on the farm of Charles Carroll for whom he was working on that day. At the time of his death he was at work plowing in the field of Mr. Carroll.

The evidence discloses that in the month of December, 1904, or January, 1905, Ernest Darling had a fight with one Cramer near the town of Blackwater, in said county. It seems that Cramer was a friend of the deceased Jeffress, and as Cramer had been quite badly beaten in his fistic encounter with Ernest Darling, Jeffress, the deceased, espoused the cause of Cramer and hot words passed between Ernest Darling and the deceased. The evidence tended to show that the deceased was about eighteen years of age and resided with his mother at the village of Nelson in Saline county near the Cooper County line. On the 11th of March, 1905, he left his home to work for Mr. Carroll in Cooper county. On the next day, which was Sunday, Emmett Yeager went to the Darling home, where he found the defendant Silas Darling, his brother Ernest and Dorval Burris. Yeager told Ernest Darling that the deceased was going to work at Mr. Carroll’s the next day. Ernest replied “that will be all right.” Ernest Darling then said to Dorval Burris, “Sam Jeffress is going to work out-here at Charles Carroll’s to-day.” Burris replied, “Is he?” and Ernest said, “Yes, and I will get the s— of b — -—• tomorrow.” Burris then said, “I would like to slip along and see it done. I have got to plow your mother’s garden in the morning, but if you will wait until to-morrow afternoon, I will go.” After this the defendant Silas Darling joined Ernest and Burris and Ernest said to defendant, Silas, “Sam Jeffress is going to work out here at Charles Carroll’s,” and defendant said, “Is he?” and turned and left the room, but before going Ernest said to him that he would get him, Jeffress. Burris told Silas, the defendant, that Ernest said he ought to go .down to-morrow, and defendant said, “Yes, I believe you ought.” That same afternoon Emmett. Yeager and Ernest Darling were at the Finley home together. Ernest asked Millie Finley if she knew Sam Jeffress, adding, “He is a pretty good looking boy,” to which she replied, “Yes,” and Ernest said, “Probably he won’t look as well to-morrow as he does today.” On the way home that night Ernest said to Yeager, “I told Sam while he was cussing me on the street at Blaekwater I would get my revenge, and, by God, I will get it, too.” On the same Sunday, Burris was riding behind Silas on a horse on the way home from Speece’s when Silas, the defendant, said to him, “I had better go down with Em to-morrow, Sam might come the knife play,” referring to the deceased. After dinner the next day, as the defendant started out of the house he said to Burris that he was going over to Carroll’s, to which Burris replied, “No, we will go up and chop cord wood,” and then they went towards the barn, where they said they would go and settle upon what they were going to do. While at the barn Ernest, Silas and Burris discussed the subject of going over to Carroll’s to whip the deceased. Burris said to Ernest, “Em, you ought not to- go down there, but catch him on the road,” to which Ernest replied, “If I don’t go over there now, G— d — , if I don’t go now, I won’t ever get him.”

They started from the barn, Ernest and Silas, the defendant going around on the north side of the house where there was a pile of scrap iron, and Burris passing through the house to get a drink of water. The three then went on towards Carroll’s place. As they came along the road, Ernest said it would be a joke if deceased had gone to town. They met Charles Pyatt on the road and said to him that they were duck-hunting. As they approached the Carroll house, it was agreed that the defendant should do the talking, and he asked to borrow a lister from Mr. Carroll. At the Carroll house, the defendant asked Mrs. Carroll where Mr. Carroll was and being informed by her that he had gone to town, he said, “Well, we will go on down towards the Lamine river and we will meet him.” They left the house talking about the deceased for some distance, and then sent Burris back for the purpose of learning whether the deceased was about the place. When he came back and joined Ernest and the defendant, they saw the deceased at work in the field and went across the field towards him. As they approached him they found him with his team stopped, leaning against one of the handles of the tongueless cultivator, which he was working. He was wearing a pair of gloves, one of which he removed in taking a chew of tobacco. He had in his pocket a small monkey-wrench for use with the cultivator. Burris and the defendant approached the deceased directly in front and engaged him in conversation while Ernest passed around to the rear of the deceased, and without a word passing between the deceased and Ernest and without any unpleasant or unusual conversation between the deceased and the defendant and Burris or any hostile movement on the part of the deceased, Ernest Darling hit. deceased on the side and back of the head with what appeared to be a piece of iron and the blow felled him to the ground at the cultivator handles. Ernest quickly followed the first lick with blows upon the head of the deceased with this iron, saying as he did so, “You remember how you done me down at Blackwater, I will get even with you.” He asked the deceased to hollow “Enough,” which deceased did. The head of the deceased was beaten down into the ground and he was mangled and bleeding profusely when Burris lifted him, but he was too weak to stand. Thereupon the defendant, Silas, said, “I know what we will do. We will turn the team loose,” and said they would make people think the team had injured the deceased. About this time Bill Spry, passing in the distance, was called to the scene by Burris, and to him, Ernest said, referring to the deceased, “He called me a son of a b--■, and I knocked him over the plow handles with the lines over his shoulders.” Spry said, “The boy is bleeding a right smart.” And Ernest said, “Yes, and let him bleed, d— him, it is good enough for him.” The deceased was.taken to the home of Mr. Carroll by the defendant, his brother and Burris, and died just as he reached the house. The defendant declined to help the deceased into the wagon, or to take him out when they reached the house, saying that he did not want to get blood on his hands.

Witnesses for the State who visited the scene of the tragedy the next morning testified that the earth where the deceased fell bore the impression of his head and the stains of pools of blood. No rocks or other objects which could have been used as weapons were found near the scene, but witnesses for the defendant testified that several days after the killing they found several rocks at this immediate point with blood upon them. After the homicide, Ernest said to Burris in the presence of the defendant, “You must swear that he called me a son of a b--and started at me with a monkey-wrench, and that you put it back in his pocket.” After the preliminary trial, the defendant told Burris that he must keep his mouth shut and not tell anything. And defendant said that he did not know what to do or think about that monkey-wrench. While in the jail together they had frequent,conversations as to what their testimony would be. The coroner testified that he found the monkey-wrench which had remained in Jeffress’s pocket while Ernest was beating him.

The evidence on the part of the defendant tended to prove threats of the deceased against Ernest Darling. These treats were not communicated, however, to Ernest. There was also evidence impeaching witness Spry. The defendant testified in his own behalf that if his brother Ernest Darling, on the occasion of going to the field, had upon or about his person a piece of iron, he, defendant, was not aware of it. Burris testified that he was surprised when Ernest struck the deceased with a piece of iron.

I. The principal ground upon which the defendant seeks a reversal of the judgment is the giving of the following instruction by the court over the objection of the defendant:

“If you believe from the evidence that prior to the killing of Samuel Jeffress, Ernest Darling had formed a design to kill said Jeffress, or to inflict upon him some bodily harm, and he, Ernest Darling, armed himself with a deadly weapon and sought the said Jeffress and assaulted him with felonious intent of killing bim or doing him great bodily harm, and that the said Ernest Darling did assault and Mil said Samuel Jeffress ; yet if you further believe from the evidence that the defendant, Silas Darling, went with his brother Ernest Darling to the scene of the killing for the purpose of and with the intention, if necessary, to aid', encourage, or to abet his brother, Ernest Darling, in assaulting said Jeffress, but that the defendant did not know that his brother Ernest Darling intended to use a deadly weapon in making such assault, and did not know of a felonious intent on the part of Ernest Darling, but understood at the time that it was the purpose and intention of Ms brother Ernest Darling, merely to whip the said Jeffress, then and in that event the defendant cannot be guilty of any higher crime than manslaughter in the fourth degree.”

It is insisted by the learned counsel for the defendant that this instruction authorizes the jury to find the defendant guilty of manslaughter M the fourth degree, notwithstanding he only entered into the conspiracy with his brother Ernest Darling with the intention merely of assisting Ernest Darling to assault and whip him and not to kill him. “ If, ” they say,1 ‘ the jury had been called upon to determine that the defendant and his brother entertained a common intent to assault the deceased Jeffress, and that Jeffress was killed in the execution of such common plan by Ernest Darling without resort by him to the use of a deadly weapon, then probably the instruction would have embodied the elements o,f manslaughter, but to say that a person intending to aid another in making a simple assault on a third party, who does not know that the party whom he intends to aid has a felonious intent against said party and does not know that his associate has or intends to use a deadly weapon, is guilty of manslaughter when the person he is aiding resorts to the use of a deadly weapon and takes the life of such third person, therewith, is a monstrous proposition.”

If several persons conspire to do an unlawful act and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is in the construction of law the act of all. And he who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences that may arise from its perpetration. [2 Hawk. P. C., ch. 29; 1 Hale P. C., ch. 34; 1 Russell on Crimes, 24; 1 Chitty, Criminal Law, 264.]

As to this familiar statement of the law we understand the learned counsel consent. In its 8th instruction the court advised the jury as to what would constitute a conspiracy between the defendant and Ernest Darling, in these words: 1‘ That if the defendant, Silas Darling, with the knowledge of the intention of his brother Ernest to so whip Samuel Jeffress, accompanied his brother Ernest Darling to the scene of the tragedy for the purpose and with the intention of aiding, encouraging or assisting his brother Ernest if necessary in making such assault and was then and there present at the time of such assault for the purpose and with the intention of aiding, encouraging and abetting his brother Ernest Darling therein if necessary then the defendant was guilty of manslaughter,” if as required in the other instructions, Ernest Darling did Mil the deceased in pursuance of that understanding.

In 1 McClain on Criminal Law, section 196, the author says: “It results from the principle stated in the preceding section that everyone connected with carrying out a common design to commit a criminal act is concluded and hound by the act of any member of the combination perpetrated in the transaction of the common design. But it is not necessary that the crime committed shall have been originally intended. Each is accountable for all the acts of the others done in carrying out the common purpose, whether such acts were originally contemplated or not, if they were the natural and approximate results of carrying out such purpose; and the question whether the result is the natural and probable effect of the wrongful act intended is for the jury. Thus, if several persons agree to commit and enter upon the commission of a crime involving danger to human life, such as robbery, or assault and battery, or resisting an officer, or resisting arrest, all are criminally accountable for death caused in the common enterprise. Thus, also, if the unlawful enterprise is likely to meet violent resistance, all will be liable for a felonious assault committed by one of their number in consequence of such resistance; and if the common design in general involves acts of violence, all who participate in the common plan are equally answerable for acts of others done in pursuance thereof, although the result was not specially intended by them all.”

In 1 Wharton’s Criminal Law (8 Ed.), section 220, it is said: “It is not necessary that the crime should be part of the original design; it is enough if it is one of the incidental probable consequences of the execution of that design, and should appear at the moment to one of the participants to be expedient for the common purpose. Thus where A and B go out for the purpose of robbing C, and A, in pursuance of the plan,' and in execution of the. robbery, kills C, B is guilty of murder.”

The doctrine on this particular subject is nowhere better reviewed and announced than in Williams v. State, 81 Ala. 1. In that case the court had occasion to consider the statement of Mr. Bishop in 1 Bishop’s Criminal Law (7 Ed.), 687, in which the learned author says: “If two combine to fight a third with fists, and death accidentally results from a blow inflicted by one, the other also is responsible for the homicide. But if one resorts to a deadly weapon without the other’s knowledge or consent, he only is thus liable.” It is this exception to the general rule upon which counsel for the defendant insists that the instruction given by the court in this case was erroneous and he cites this statement of the law by Bishop and the ease of Reg. v. Caton, 12 Cox, C. C. 624, in support of the proposition. Speaking of this limitation of the rule by Bishop, the Supreme Court of Alabama says: “The implied agreement here is evidently not to resort to the use of a deadly weapon, and the use of such weapon is therefore foreign to the contemplation of the parties, and a departure from the common design. It is said by some of the standard authors that if the specific act agreed to be done was malum in se, the responsibility for unintended results would embrace acts arising from misfortune or chance; but otherwise if such specific act was malum prohibitum merely, or lawful. [1 Bishop Cr. Law (7 Ed.), sec. 331.] In some cases the distinction is taken that where persons unlawfully conspire to commit a trespass only, to make all the confederates guilty of murder, the death must ensue in the prosecution of the design. If the unlawful act be a felony, or be more than a trespass, it will be murder in all, ‘although the death happened collaterally, or beside the original design.’ [State v. Shelledy, 8 Clarke (Iowa) 477.] In another recent case the rule was announced that ‘if the unlawful act agreed to he done is dangerous, or homicidal in. its character, or if its accomplishment will necessarily or probably require the use of force and violence, which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design, whether he is present or not.’ [Lamb v. People, 96 Ill. 73.] The question in this ease then would seem to me, whether if five or six men combine together to invade a man’s household, and they go there armed with deadly weapons for the purpose of attacking and beating him, and in furtherance of this common design, all of the confederates being present, or near at hand, one of them gets into a difficulty with their common adversary and kills him, all may not be guilty of murder, although they did not all entertain a purpose to kill? The question, we think, must be answered in the affirmative, in the light of both principle and authority. Every man has the right to defend his house against every unlawful invasion, and to defend his person, when within it, against every and all violence, without the necessity of retreat. The experience of mankind shows that very few men will fail to respond to instinct by exercising this right, to the extent even of killing an assailant if necessary. When a mob, conspiring together unlawfully, go to a man’s house to do any serious violence to his person, especially in the nighttime, as here, they can expect nothing else than to meet with armed opposition, and the inference is not unreasonable that they intend nothing less than to oppose force to force, in the furtherance of their design. The natural and probable consequence of this is homicide — either of one or more of the assailants or of the party thus assailed, and such homicide, when committed by any one of the conspirators, can be nothing less than murder in all who combine to commit the unlawful act of violence, especially if they be near at hand inciting, procuring, or encouraging the furtherance of the act of assault and battery.”

In Peden v. State, 61 Miss. 267, several persons conspired together to take one Walker from his house and whip him. He was accordingly taken from his bed and severely beaten, and in executing this design, one of the confederates struck him a fatal blow with a spade from which he died. It was held that all were guilty of murder whether they entertained a purpose to kill Walker or not. [See, also, Brennan v. People, 15 Ill. 511.]

That the evidence in this case fully justified the instruction of the court submitting to the jury the defendant’s knowledge and intention of the intended assault and determination on the part of his brother Ernest to whip the deceased, and whether he had gone with him to aid, assist and abet in the assault and battery, there can be no doubt whatever. That such an assault and battery is what the text-writers denominate mal/mi in se is also plain. It is to be observed that in this case the method and means by which Ernest was to make this assault were not limited as in the case stated by Mr. Bishop where they agreed to fight with fists only, and one used a deadly weapon without the knowledge of his confederate, but the evidence showed a conspiracy to assault and whip the deceased without any such limitation. As said by the Alabama Supreme Court, the defendant, knowing of this purpose and going along to assist in it, could expect nothing else than that the deceased would naturally oppose force to such unlawful design upon his person, as the experience of mankind shows that very few men would tamely submit to such an outrage and indignity, and a natural and probable consequence to such an encounter would be homicide, either of the deceased, or of one of them. And the law will hold him responsible for the act of his brother. Most of the adjudicated cases hold that he would he guilty of murder in such a case, and he has no cause to complain that the court limited his offense to manslaughter in the fourth degree. We do not think that the court in this instruction lost sight of the question of common design as between Ernest Darling and the defendant. On the contrary, the liability of the defendant throughout the case was predicated upon the fact of his having entered into the unlawful design to assault and whip the deceased. Neither do we think this is a case falling within the principle that where one of the conspirators goes outside of the common plan and commits a fresh and independent act wholly outside and foreign to the common design, the others are not to be held equally guilty of that act.

Taken altogether, we think this instruction was exceedingly favorable to the defendant and the court did not err in giving it. It follows from what we have already said that in our opinion the court committed no error in refusing to direct the jury to acquit the defendant.

II. After the information was filed and verified, by leave of the court, the prosecuting attorney amended the same by inserting in one place the word “deliberately” and in another “willfully,” but did not re-verify the information after the amendment. Defendant moved to quash on the ground that the information was not verified. Section 2481, Revised Statutes 1899, provides that “any affidavit or information may be amended in matter of form or substance at any time by leave of court before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits,” etc. This statutory provision was ample authority for the action of the court and prosecuting attorney. When the prosecuting attorney added the two words over his own signature and affidavit, he amended the information, and there was no need of a new affidavit, which was no part of the information. Clearly the insertion of the word “deliberately” did not affect defendant’s rights as he was found guilty of manslaughter only.

Counsel concede that an information need not be reverified where unimportant amendments are made. We think the statute is a wise and salutary one and should not receive a harsh construction. A broad distinction exists between allowing the amendment of an indictment, as it is the act of a grand jury, and an information by a prosecuting attorney, made by leave of court. The latter may very properly be made by the officer who prefers it and when he does amend it, there is no occasion for reverifying it.

III. The complaint as to the remarks of the prosecuting attorney and the action of the court thereon, afford no ground for reversal. It is conceded that the language of the prosecuting attorney was not taken in his exact words and the trial court who heard the argument overruled the point and we think the whole colloquy taken together fails to show any prejudice. The result shows that the jury were not influenced to find defendant guilty of murder in either degree. The judgment is affirmed.

All of this division concur.