This is an application for bail, after indictment found charging the petitioners with murder in the first degree. On a hearing, the judge dismissed the
The evidence estаblishes that the father of these petitioners shot and killed a deputy sheriff in resisting his arrest by that officer and others. No justificatiоn is shoAvn for the killing. And it is reasonably certain thаt had these petitioners not interefered, the killing would not have occurred. Indeed, their father Avould have been overpoAvered by the officers Avithout bodily hаrm to him and thus been rendered impotent to have procured and used the pistоl with which he inflicted the deadly wounds, had they not by their conduct freed one of his hands frоm the grasp of the officer who ivas killеd. That these petitioners’ conduct, under the evidence, was the cause оf the killing scarcely admits of doubt. But it is said that thе father was insane at the time of the killing and that his insanity Avas knoAvn to the petitioners, and that they should have been permitted to prove these facts. The theory seems to be that if he was insane," and therefore incapable of committing murder, the father to commit the crime, they are responsible for this act of firing the pistol Avhich produced the death of thе officer. Had the trial judge permitted this proof to have been made and had found in line Avith it, in view of the conduct of the рetitioners on the occasion of the homicide, which was calculated to incite and did incite the father to сommit the crime, they are responsiblе for his act. As said by Mr. Bishop, “The method of tliе killing is immaterial. Thus * * * in some cases a man shall be said, in the judgment of the law, to kill one whо is in truth actually killed by another, as where оne incites a. madman to kill himself or anоther.”' — 2 Bishop’s New Grim. Lrav, § 635.
This principle is stated by Bussell on Crimes', p. 5, in this language: “If A. procures B., an idiot, or lunatic, to kill O., A. is guilty of the murder as principal, and B. is merely an instrument.” See also 1 East. P. O. Oh. V., § 14, p. 228; 1 Hawkins P. 0., § 7, p. 92.
Affirmed.