94 Ala. 19 | Ala. | 1891
— There was evidence tending to show that the defendant conspired with his father and brother to attack James Powell, and that there was a concert of action between the three when the assault was made, though the evidence was conflicting as to whether the wound received by Powell was inflicted by the defendant or by his brother, Joe Jolly. Even if Joe Jolly was the active perpetrator in the commission of the offense, the defendant is in the eye of the law equally guilty, if he was present, encouraging, aiding, abetting. or assisting, or was ready to aid, abet or assist in the execution of the unlawful design. If the three combined together to attack Powell, each of them would be criminally responsible for any act of the other which was a probable or natural consequence of the execution of their common purpose, though the particular act done was not expressly agreed to or con
. “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not. present, must . . be indicted, tried and punished as principals, as in the case of misdemeanors.” Code of 1886, § 3704. The portion of the oral charge of the ■court to which an exception was reserved, and charges 2 and 3 given at the instance of the State, were correct, under the rules above stated.
Charge 1, given át the instance of the State, is fully supported by the decision in the case of Walls v. The State, 90 Ala. 618.
It was contended for the defendant, as shown by a number of charges requested, that on an indictment charging him with an assault with intent to murder, he could not be convicted on proof that he was a conspirator, and aided or abetted in the commission of the offense, but. that it must be shown that he committed the assault in person. That this contention was not well founded is shown by the above statement of the law on the subject. Charges 1, 4, 9, 10,13 and 15 involved the erroneous proposition just stated, and were properly refused.
If the defendant was concerned in the commission of the felony, or aided or abetted his father and brother therein, either of them could be convicted, though the jury could not determine from the evidence which of the three inflicted the wound, if they were satisfied from the evidence that it was inflicted by one of the conspirators, in the execution of the common design. Charges 2, 5, 6, 14, 16 and 17 requested by the defendant were incorrect, in predicating a right to an acquittal upon the existence of a doubt as to who did the cutting, without regard to the absence of doubt in the evidence that the cutting was done by one of the three pei’sons who were acting in concert with a common purpose to attack Powell.
The defendant could be charged as a principal, if the conspiracy to attack Powell was formed at the time of the difficulty, and the cutting was done in the execution of a plan to which the defendant then became a party. The conspiracy
If Joe Jolly was'the assailant, and the defendant knew that the assault was made with intent to murder, and was present as an accomplice to encourage, aid or assist in its execution, it was not necessary to show that the defendant himself entertained the intent or malice against Powell. — Tanner v. The State, 92 Ala. 1. For this reason, charge 12 was properly refused.
Charge 7 was calculated to convey the impression that it was necessary to prove that the defendant committed the assault in person. In view of the evidence tending to show a conspiracy, it had a tendency to mislead the jury.
Charge 8 ignores the evidence which tended to show that the defendant did commit the assault in person. If that tendency of the evidence was believed, it was unnecessary to-prove the conspiracy.
The proceeding on the motion for a new tidal was not properly made a part of the record. Besides, the action of the trial court on such an application is not revisable here. Walker v. The State, 91 Ala. 76. The act' of February 16, 1891 (Acts of Alabama, 1890-91, p. 779), allowing appeals to-this court from decisions granting or refusing to grant motions for new trials, applies only to civil cases at law.
No error is discovered in the record.
Affirmed.
