190 Mo. 296 | Mo. | 1905
On the 19th day of April, 1904, there was filed in the criminal court of Jackson county, Missouri, by the prosecuting attorney thereof, an information against Edgar G. Bailey, James Forsha and William Moon, jointly charging them with the crime of murder in the first degree; it being alleged in the information that the parties named killed Albert Ferguson upon the 19th day of March, 1904, in Jackson county by shooting him with a pistol. Upon application of the defendant, the court granted a severance and the State elected to try Edgar G. Bailey first. His trial began on the 27th day of June and ended the second day of July, and his conviction of murder of the first degree was affirmed by this court. [State v. Bailey, ante, 257.] The State elected to try James Forsha next and his trial began upon the 18th day of July, at the April term of the criminal court of Jackson county, and ended upon the 23d day of July, 1904, resulting in a conviction of murder in the second degree, and a sentence of eighteen years- in the state penitentiary. The evidence in the case offered by the State and the defendant was substantially as follows:
In the month of March, 1904, there was a strike in Kansas City, Missouri, on the part of the Hack Drivers’ Union against the hack companies in an effort to compel them to employ only union men. The defendant Forsha was a member of the union and he, Bailey and Moon (both of whom are also members of the union) were taking an active part in the strike. The headquarters of the Hack Drivers’ Union was located on Central street, a little to the north of 9th street, and for two weeks prior to the date of the homicide, Bailey had been living with a woman by the name of Gertrude
Ferguson was taken from the place of the homicide to the police station, from which place he was
“March 19, 1904.
• “I, Al. Ferguson, now at the German Hospital, believing that I am about to die, and having no hope of recovery, do make the following statement of the facts leading up to my being shot and wounded this morning at about three o ’clock:
“This morning, shortly before 3 a. m., we got a call from the Coates House. Went there, and took three men, and a man dressed in woman’s clothes into my hack. They wanted me to drive them to Fifteenth and Central street. I drove there and got down to let them out. I opened the hack door. I found that the man had removed his woman’s clothes and there were four men there. As they-got out they began to attack me. I defended myself as best as I could. The third man who got out of the hack shot me in the abdomen. He was a medium-sized man, with black hair. The first man who got out of the hack said to me, ‘We have got you, you son-of-a-bitch, what are you going to do now? ’ After the third man shot me, they all ran away. I did not know- any of them.
his “Al. X Ferguson.” mark.
“Witnesses —
A. S. Lyman,
Dr. E. L. Stewart.”
At the hospital, Ferguson was operated on by a physician in the vain hope of saving his life, but the next day he died. The fatal wound received by Ferguson was from a bullet which entered the abdomen three inches below and two, inches to the right of the navel, taking a downward, backward and outward course, perforating the bowels and lodging under the spine at a point about two and one-half inches below
The evidence in behalf of the defendant consisted of the testimony of Bailey and Moon and that given by three painters who were working in the county jail on the date before the trial, and claimed to have heard Mrs. Biggs say that a representative of the State had told her father, her lawyer, and herself that if she testified against Forsha she would get out of jail, but if she didn’t she would get ten years in the penitentiary, and that she had also said if the sons-of-bitches didn’t treat her right they would not get any evidence out of her.
Bailey, testifying in behalf of his associate, Forsha, stated that they, Forsha, Moon, Mrs. Biggs and himself, had been at Labor Headquarters some fifteen or twenty minutes before Moon had called the hack from the Landis Company, and that Forsha had not said anything in regard to a hack prior to that time; that on the way from the Coates. House to Fifteenth and Central, Forsha had called to the driver when he
Moon, called as a witness by the defendant, was instructed by the court that as he had not yet been tried, it was his right and privilege to refuse to answer any question that he might think would tend to incriminate him. Under that admonition he testified, in substance, as follows: That he was twenty-four years old and a native of Missouri; a hack-driver by profession; that he was at Fifteenth and Central on the morning of the 19th of March in a hack in company with the defendant, Bailey and Gertrude Biggs; that when the hack came to a stop the hack-driver got down with a pistol in his hand and said, “Get out of here, you union has
This constituted the testimony in behalf of the defendant.
Upon rebuttal, John Hayes, chief of police of Kansas City, testified that upon the 16th of April, Bailey, Moon and Forsha were arrested and brought to police headquarters; that Moon and Forsha there made a written statement in reference to the homicide, which was signed by each; that at first Forsha had denied any ■knowledge of the affair, but that afterwards, on Bailey’s telling him, Forsha, that he, Bailey, had “told everything,” Forsha then said, “I will admit I was out there. We took him out there for a damn good licking, to slug him. ’ ’
A portion of the written statement of Moon, to
The written statement of Forsha was then offered in evidence, over the objection and exception of the defendant on the ground that the same was not rebuttal and incompetent, irrelevant and immaterial. The written statement is as follows:
“Kansas City, Mo., April 16th, 1904.
“My name is James Forsha. I room at 212 West Seventh street. On the morning of the 19th day of March, 1904, Moon, Bailey, Mrs. Biggs and I got into a hack at the Coates House and drove to Fifteenth and Central street; I don’t remember who it was that told the driver to go to that place. When we got there the driver got down off the hack, he had a pistol in his hand, and opened the door. I was the first one to get out, and as I was getting out the driver struck me on the chin with a pair of brass knucks, he knocked me to the ground. When I got up the shooting was going on, after he knocked me down there was a shot fired. After I got up I started away and when I got near Fourteenth and Central I heard four or five shots fired. Bailey told me he had shot the driver; I did not see the-shooting. We had the driver go to Fifteenth and Central because it was our intention to beat him up; we did not intend to do him great harm. I make this statement because it is the truth, without fear or promise of reward.
‘ ‘ Jambs Forsha. ’ ’
Moon, recalled to the witness stand, denied, after stating again that the purpose of the hack ride was entinely an innocent one, that the linings of Ferguson’s hack was torn and cut by him and his associates. On examination by the defendant’s counsel, he testified that he had pleaded guilty in the criminal court of Jackson county to a charge of common assault, served a sen
E. Landis testified that' be was tbe owner of tbe back that Ferguson was driving at tbe time of tbe homicide ; that be bad seen it about twelve o ’clock midnight March tbe 18th, and a few minutes after tbe killing, and that tbe lining was tben all cut and was tom, but that there was no bullet boles in tbe back, tbe only damage being to tbe inside. He further testified that Ferguson was a man about five feet seven inches tall, weighing about 140 pounds, and that be bad a crippled band. That be, tbe witness, bad given Ferguson a loaded pistol in order to defend himself from tbe assaults that might be made upon him by union back-drivers.
Mrs. Biggs, called again to tbe stand, described bow Forsba, Moon and Bailey bad torn and cut tbe lining of tbe backs in wbicb they bad ridden to tbe road bouse on Southwest boulevard and to Fifteenth and Central.
Bailey, re-called for further examination, denied that on March 19th, at tbe registration booth, where be was serving as judge of registration, be replied to a remark made by one L. R. Cooper, “tbe strikers can never expect to win as long as they are using violence and shooting people,” by saying “that is tbe only way to win. ’ ’
L. R. Cooper, called to tbe stand, testified that on tbe 19th of March, be bad said in Bailey’s presence, “tbe strikers could never expect to win as long as they are using violence and shooting people, they will get public sentiment down on them, ’ ’ and that Bailey made reply, “that is tbe only way to win.”
Tbe witness Cooper, David Buck, an ice dealer in
Matt S. Kinney, a detective, testified that after the defendant Forsha was arrested he told him, the witness, that he had given to a bartender on Ninth street the cartridge belt that he had taken from Meyers, and also his knife.
After the close of the testimony in rebuttal by the State, the defendant was sworn ás a witness. As numerous complaints are made at the action of the court in respect to the examination of this witness, his testimony will be fully stated and considered during the course of the opinion.
At the close of the evidence the court fully and fairly instructed the jury as follows:
“1. The information in this case was filed by the prosecuting attorney on the 19th day of April, 1904, and charges the defendant with murder in the first degree.
“Murder in the first degree is the willful, felonious, deliberate and premeditated killing of a human being with malice aforethought.
“Murder in the second degree has all the elements of murder in the first degree except that of deliberation.
“As used in these instructions the word wilful means intentional, not accidental.
‘‘ Felonious means wickedly and against the admonition of the law, unlawfully.
“Deliberately means in a cool state of the blood, it does not mean brooded over, considered, reflected upon for a week, a day on an hour, but it means an intent to kill, executed by a party not under the influence of a violent passion suddenly aroused by some just or lawful cause of provocation to passion/ but in the further*315 anee of a formed design to gratify a feeling of revenge or to accomplish some other unlawful act, and the passion here referred to is that only which is produced by what the law recognizes as a just or lawful cause of provocation to passion.
“Premeditated means thought of beforehand for any length of time, no matter how short the time.
“Malice, as used in these instructions,• signifies a condition of the mind void of social duty and fatally bent on mischief, or, unlawful intention to kill or do some great bodily harm to another without just cause or excuse.
“Aforethought means thought of beforehand.
“In defining the words ‘just or lawful cause of provocation,’ as used in these instructions, the court instructs the jury that opprobrious epithets or insulting gestures when applied to a person constitute a just cause of provocation to passion, and if the person to whom they are applied is thereby aroused to a sudden heat of passion, and before such passion has had time to cool with a deadly weapon kills the person who applies such approbrious epithets or gestures to him, then such killing is done without deliberation, and a homicide committed under such circumstances is murder in the second degree.
‘ ‘ The court instructs the jury that an assault made upon the defendant constitutes a lawful cause of provocation to passion, and where a homicide is committed Avith a deadly weapon in a heat of passion suddenly aroused by an assault, and before such heat of passion has had time to' cool the defendant kills the person making such assault with a deadly weapon, such killing is manslaughter in the fourth degree.
“The words ‘heat of passion’ as used in these instructions means a heated state of the blood, caused by a lawful or just provocation which deprives the defendant of the power of self-control.
“2. The court instructs the jury that if you find*316 and believe from tbe evidence that at the county of Jackson and State of Missouri, at any time before the 19th day of April, 1904, the defendant, James Forsha, either alone or acting in concert with another or others, wilfully, deliberately, premeditatedly and of his malice aforethought, did with a certain revolving pistol, and that the same was a dangerous and deadly weapon, shoot one Albert Ferguson, inflicting upon him a mortal wound from which said mortal wound the said Albert Ferguson, within one year thereafter, at the county of Jackson and State of Missouri, died,, then you will find the defendant guilty of murder in the first degree, and so say in your verdict.
“In that event you have nothing to do with the punishment, that is fixed by law.
“3. The court instructs the jury that if you fail to find a verdict according to the law as declared in instruction No. 2, but shall find and believe from the evidence that at the county of Jackson and State of Missouri, at any time before the 19th day of April, 1904, the defendant, James Forsha, either alone or acting in concert with another or others, wilfully, premeditatedly and of his malice aforethought, did with a, certain revolving pistol, and that the same was a dangerous and deadly weapon, shoot one Albert Ferguson, inflicting upon him a mortal wound, from which mortal wound the said Albert Ferguson, within one year thereafter, at the county of Jackson and State of Missouri, died, then you will find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the state penitentiary for any term not .less than ten years.
“4. The court instructs the jury that if they find and believe from the evidence that James Forsha was present aiding and abetting Edgar Gr. Bailey/in the act of homicide in evidence in this case, he is in law equally guilty with him who fired the shot. When two or more persons are engaged in the same illegal purpose, any*317 act done by one of tbe party in pursuance of that purpose, and with reference to it, is in contemplation of law tbe act of all; and proof of such act is evidence against any or either of the others who were engaged' in the combination.
“5. The court instructs the jury that if you find and believe from the evidence that defendant James Forsha conspired and agreed with William Moon and Edgar Gr. Bailey to assault and beat Albert Ferguson, but not to the extent of doing him great bodily harm and absolutely without any intention in Forsha’s mind of shooting said Ferguson, and that in pursuance of said agreement any one or all of the parties thereto assáulted said Albert Ferguson with the intention aforesaid, and that thereafter or thereupon Edgar Gr. Bailey, without the consent, aid or encouragement of defendant, James Forsha, shot and killed Albert Ferguson, then in that case you will find the defendant guilty of manslaughter in the fourth degree.
“6. The court instructs the jury that if you shall believe and find from the evidence that at the time it is charged that Albert Ferguson was killed the defendant James Forsha, William Moon and Edgar Q-. Bailey were acting’ together, -and that Albert Ferguson was about to kill Edgar Gr. Bailey or do him great bodily harm, then he had the right to kill Albert Ferguson under such circumstances, but, to justify such killing, you must find from the evidence that he did believe and had reasonable cause to believe that such injury was about to be done, and that deceased was killed to prevent such injury. It is not necessary that the danger should have been actual and about to fall on him, but it is necessary for him to have believed it, and that there should have been at the timé of such killing reasonable grounds for such belief. It is for you tó say from the evidence in the case whether Edgar Gr. Bailey did believe and had reasonable cause to believe that such impending harm at the time the deceased was*318 shot was about to fall on him; if as a fact he did not have reasonable cause to believe that such danger was impending at the time the deceased was shot, then such killing is not justifiable. His believing himself in danger is not sufficient; he must have had reasonable cause to believe it, and of that yon are to determine from all the facts and circumstances in the case. If yon find that Bailey shot in self-defense, as defined, then you should find defendant not guilty.
“7. If the jury believe and find from the evidence that Bailey, Porsha and Moon confederated together and engaged in a common design to take deceased out on the night in question and beat him up; and that it was part of their common desig-n and purpose, if deceased made resistance, to kill him or to do him some great bodily injury, then whatever Bailey did .in carrying out the common purpose was in law the act of Porsha, the defendant, and they are equally liable for such act; and if the defendant and Bailey and Moon, in pursuance to such common design, brought on the difficulty in which Albert Ferguson was killed, and entered into it with the intention of killing or inflicting great personal injury upon Ferguson, if he should resist them, then the danger in which they, or any of them, found themselves or himself, would not extenuate the offense or reduce its grade, and there could be no self-defense in the case.
“8. The court instructs the jury that if you find from the evidence that James Forsha, William Moon and Edgar Gr. Bailey, conspired and agreed to entice Albert Ferguson to Fifteenth and Central streets, and there assault him, but not to the extent of killing him or doing him great bodily harm, and that upon arriving at said place James Forsha struck at or struck Albert Ferguson, but did not inflict upon him any injury sufficient to endanger his life; and that immediately thereafter the defendant James Forsha ran away, and endeavoi*ed in good faith to withdraw from said diffi*319 culty and Edgar Gr. Bailey then killed Albert Ferguson, but not under circumstances to constitute complete self-defense, as elsewhere in these instructions defined, then you will find defendant guilty of manslaughter in the fourth degree. But if defendant at the time or immediately before he ran away incited or encouraged Bailey to Mil Ferguson or to do him great bodily harm and intended that he should kill or inflict upon him great bodily harm, then Ms running away would not avail the defendant anything.
“9. The court instructs the jury that if defendant and Bailey and Moon voluntarily entered into the difficulty, or brought it on but without any intention of Mlling or inflicting upon Ferguson any great personal injury, and without intending to kill him or to do him great bodily harm if he resisted, and during such difficulty Ferguson, before he was assaulted, with a deadly weapon attempted to kill Bailey or Moon or Forsha and it became necessary for Bailey to Mil said Ferguson to save himself or to save Moon or. Forsha from being killed or receiving great personal injury, then the defendant cannot be entirely excused on the ground that Bailey killed Ferguson in self-defense; but in that case you should find the defendant guilty of manslaughter in the fourth degree.
“10. The court instructs the jury that if they find the defendant guilty of manslaughter in the fourth degree they will assess his punishment at imprisonment in the state penitentiary for a term of two years, or, by imprisonment in the county jail not less than six months nor more than twelve months, or, by a fine not less than five hundred dollars, or, by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months nor more than twelve months.
“11. The court instructs the jury that any statements which the proof shows Edgar Gr. Bailey made after the homicide was committed and not in the pres*320 ence of the defendant Forsha, are not binding upon the defendant; bnt can only be considered so far as it may throw light upon the acts or testimony of Bailey.
“12. If verbal or written statements of the defendant have been proven in the case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show yon, if anything, that the defendant has said against himself, is presumed to be true, because against himself; bnt anything yon may believe from the evidence the defendant said in his own behalf, yon are not obliged to believe, bnt yon may treat the same as true or false, just as yon believe it true or false, when considered with a view to all the other facts and circumstances in the case.
‘‘13. The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of the defendant’s guilt beyond a reasonable doubt, as defined in these instructions.
“14. The court instructs the jury that the burden of proof in this case rests upon the State.
‘‘ 15. The court instructs the jury that before they can convict the defendant, they must be satisfied of his guilt beyond a reasonable doubt; such doubt, to authorize an acquittal upon reasonable doubt, must be a substantial doubt of the defendant’s guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant’s innocence.
‘‘ 16. The jury are the sole judges of the credibility of the witnesses, and' of the weight and value to be given to their testimony. In determining as to the credit you will give to a witness, and_ the weight and value you will attach to a witness’s testimony, you should take into consideration the conduct and appear*321 anee of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, the witness’s relation to, or feeling for or against the defendant, or the alleged injured party, the probability or improbability of the witness’s statements, the opportunity the witness had to observe and to be informed as to the matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully, or otherwise, as to matters within the knowledge of such witness. All these matters being taken into account, with all the other facts and circumstances given in evidence, it is your province to give to each witness such credit and the testimony of each witness such value and weight as you deem proper. If, upon a consideration of all the evidence, you conclude that any witness has sworn wilfully false as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness’s testimony.
“17. The court instructs the jury that the defendant is a competent witness in this case and you must consider his testimony in arriving at your verdict, but in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on trial, testifying in his own behalf.
“18. The court instructs the jury that the statement read' to you as the dying declaration of Albert Ferguson should be received by you as such declaration, but, because it is a dying declaration, you are not necessarily bound to believe it, but you will give it that weight which you think it ought to have when considered in connection with all the other facts and circumstances in evidence.
“19. The court instructs the jury that the defendant is not charged in this case with making an assault*322 upon Albert Meyers, and you will not consider the testimony before you upon that subject, except in so far as it may tend to throw light upon the motives or intentions of--Bailey, Moon, and this defendant; whether or not it does throw light on the motives and intentions of defendant and Moon and Bailey, you will be the judges, when it is viewed in connection with all the other facts and circumstances in the case.”
The cause was submitted to the jury upon the testimony and the instructions of the court as herein indicated, and they returned a verdict of guilty of murder of the second degree, and assessed defendant’s punishment at imprisonment in the penitentiary for eighteen years. Sentence and judgment were rendered in accordance with the verdict and from this judgment defendant prosecutes this appeal, and the cause is now before us for consideration.
OPINION.
Numerous complaints are urged by learned counsel for appellant as grounds for the reversal of the judg- . ment in this cause.
This is a companion case of State v. Bailey, mite, 257, and the testimony as to the main facts upon which this judgment rests, with a few exceptions, is substantially the same as in that case.
At the very inception of the consideration of this cause, it is well to see what legal propositions were disposed of in the Bailey case, for as to questions involved in that case we see no reason to depart from the conclusions announced, and they must be treated as being settled.
The defendant Bailey, Forsha and Moon were jointly charged with murder, in the information now under consideration, and its sufficiency is challenged in this cause upon'the same ground as urged in State v. Bailey, supra. It is unnecessary to repeat the reasons assigned in the Bailey case for holding the charge as
The assignment of error upon the admission of testimony in respect to the difficulty with Meyers on the night of the homicide was fully and exhaustively treated by Judge Gantt in State v. Bailey, and it is only necessary to say that we are fully satisfied with the conclusions reached upon that proposition, and see no reason for a reconsideration of that question or departing fom the rules of evidence announced in that case.
It is insisted by appellant that the court erred in retaining jurors Shaw, Duncan, Bell and Ryan on the panel from which the jury of twelve was
Numerous complaints are made upon the admission and exclusion of evidence during the progress of this trial; some of them, doubtless, are not seriously made; however, we have fully considered all of them, but must be content with the expression of our views upon those which are of sufficient merit to demand serious consideration. It is insisted
There was no error in the exclusion Of the answer of Bailey to a question propounded, that in shooting Ferguson, he (Bailey) was not actuated by anything that this defendant said or did. He had fully testified on that subject, had denied that this defendant had said anything to him about killing Ferguson, or that there was any agreement or understanding that any violence was to be inflicted upon any one, and stated that the mission in taking the drive with Ferguson was purely an innocent one. We are unable to see what force the
The record discloses complaint upon the cross-ex-' amination of witness Moon for defendant. A careful consideration of that entire examination fails to disclose any error. The State, as affecting the credibility of the witness, could legitimately inquire of the witness if he had been previously convicted of a criminal offense. After the witness admitted that he had pleaded guilty to a common assault, there was nothing improper in permitting the State to show by the record that the witness had pleaded guilty to a charge of an assault with intent to Mil. This testimony was admissible as affecting the credibility of the witness. [State v. Howard, 102 Mo. 142; State v. Blitz, 171 Mo. 530.]
Again, it is urged that the testimony of witnesses W. E. Ferguson and Mrs. Clara Stevens was incompetent and should have been excluded. An examination of the record as to the testimony of the witnesses above noted discloses that the examination of these witnesses was complete before any effort was made to exclude this testimony, and while the questions and answers in the examination cover a number of pages, there is an entire absence of a single objection or exception to the testimony given. After the testimony was all submitted to the jury, then counsel for appellant moved that it be stricken out. This method of preserving complaints to the action of the trial court has not met with the approval of this court. It was ruled in State v. Marcks, 140 Mo. l. c. 668 and 669, that where timely objections and exceptions were not made to testimony at the time of its introduction, it was not error to refuse to exclude it afterwards, and in the discussion of the proposition, Gantt, J., in speaking for this court, said: “A party
This leads us to the complaint urged in respect to the examination of defendant in this cause, as a witness in his own behalf. The record before us discloses that the defendant rested his. ease in chief without being introduced as a witness in the cause, and the court properly ruled that his testimony should be confined to rebuttal of the rebuttal testimony introduced by the' State. The record discloses numerous questions propounded to the defendant and his answers excluded without any objection or exception on the part of the appellant; hence the action of the court as to those questions and answers was not properly preserved and is not subject to be reviewed by this court. Counsel for appellant with commendable frankness concede that no proper objections or exceptions were made in respect to these matters. The defendant was permitted to testify fully as to all matters which were in rebuttal of the testimony introduced in rebuttal by the State. It is apparent from the record that the main purpose of introducing defendant, as a witness was to explain the statement in writing, made by him, introduced by the State. There is no .pretense that he did not make the statement offered in evidence, or that it is ambiguous or uncertain in any of its terms, and so far as concerns any explanation of this statement at the time it was made, and what was said at the time he signed it, and any other statements which he made at. the time, which were
“Q. I will ask this question, Mr. Forsha, tell the jury what you said at police station at the time this signed statement was made by you; tell the jury all that you said about the shooting of Ferguson and what part you said, if anything, was not included in the statement, and tell the jury all of the facts leading up to and including the shooting of Ferguson by Bailey and all that you said and did in that connection?
‘ ‘ Mr. Reed: The State does not object to that part of the question which asks the witness, Forsha, to tell the jury what he said at the police station at the time he signed the statement, nor to the witness’s telling any other statement which he made at the time of the signing of the statement which he claims weren’t correctly taken down in the statement, but the State does object to the latter part of the question which is * state all of the facts and circumstances leading up to and including the shooting of Ferguson by Bailey and all that you said and did in that connection, ’ for the reason that it isn’t surrebuttal and should have been introduced, if at all, in the defense in chief.
“The Court: Sustained.
“To which ruling of the court the defendant did then and there at the time duly except.”
This clearly indicates an express waiver of any objection by the State to the testimony of defendant as to all proper explanations of the statement made by him in writing. The defendant, at the close of the State’s case in chief, had every opportunity to go on
We have read with care and interest the instructions given by the court in this cause, and have herein fully reproduced them. They are a full and fair presentation of the law as applicable to the facts developed at the trial. They fully meet every phase of this case, and are extremely favorable to the defendant.
We have fully considered the refused instructions requested by appellant, and it is sufficient to say that a number of them did not declare the law and were properly refused, and those correctly announcing legal principles were fully covered by those given by the court. In oral argument it was earnestly insisted that instructions 10 and 12, requested by defendant, should have been given. They are as follows:
“10. The court instructs the jury that even if you find from the evidence that defendant, James Forsha, conspired and agreed with Edgar Gr. Bailey to kill or inflict great bodily harm upon Albert Ferguson, and that during the difficulty, if any, with said Albert Ferguson, defendant told, advised or encouraged Edgar Gr. Bailey to shoot said Albert Ferguson, still if*330 you. further find and believe from the evidence that before Bailey fired the fatal shot, Forsha, in good faith, withdrew from said difficulty and abandoned the design to kill or inflict great bodily harm upon said Ferguson, and that Bailey knowing that Forsha had withdrawn from and abandoned said difficulty and design, thereafter from and on account of motives, intentions and purposes actuating his, the said Bailey’s mind alone, shot .and killed Albert Ferguson, then in that case you should find the defendant, James Forsha, not guilty.
“And statements made by Bailey and not in the presence of the defendant wherein Bailey states his views as to the way strikes should b.e conducted, - should not be considered by the jury as prejudicial to the defendant nor binding upon him.”
“12. The court instructs the jury that even if you find and believe from the evidence that James Forsha agreed with Edgar G-. Bailey and others to kill or inflict great bodily harm upon Ferguson, still if you further find from the evidence that before Edgar Bailey shot and killed Albert Ferguson, defendant, James Forsha, attempted in good faith to withdraw from and abandon said assault upon or difficulty with Ferguson and succeeding in so doing, and that said Edgar Bailey knew and believed and had reasonable cause to believe from all the facts and circumstances that said James Forsha had so withdrawn from said assault and difficulty, and that thereafter said Edgar Gr. Bailey from and on account of motives, purposes or incentives actuating his own mind and heart, and without the consent, aid or encouragement of Forsha, shot and killed said Albert Ferguson, then in that case, you should find the defendant not guilty.”
It will be observed that instruction 4, given by the court, fully covered the law as applicable to the question of defendant’s aiding and abetting in the commission of the homicide.
We are unable to assent to the legal principles announced in the refused instructions as quoted. If the defendant aided, abetted or encouraged Bailey, in the commission of this homicide, as some of the witnesses put it, at the time the difficulty was in progress, commanding Bailey to ‘ ‘ shoot him; shoot him; kill the son-of-a-bitch,” the mere fact that he undertook to flee from the scene of the difficulty before the fatal shot was fired, by no means can relieve him of responsibility for his participation in the commission of the act.
We are unwilling to sanction, as the law of this State, that a defendant can first, by words and actions, put in operation a difficulty or aid and abet in the commencement of it, and after having, by his course of conduct, brought the principal actors into a deadly contest, can then flee from the scene of the struggle and thereby relieve himself absolutely from the results of such fatal difficulty. Such is not the law of this State, and the court very properly refused the instructions requested upon that subject.
Many other objections to the admission of testimony are presented by the record. Upon a careful consideration of them we think they are without merit.
We have fully considered the questions involved in this case, as presented by the record before us, and if the jury believed the testimony as introduced by the State, we are deeply impressed with the exceedingly great tenderness manifested by the jury in fixing the punishment of the defendant.
In view of the results of the finding of the jury in the companion case of State v. Bailey, which was fully supported by the evidence, we confess that, upon the showing as developed in this cause, which as to the essential elements of the crime charged, was equally damaging, there is little ground for complaint on the
Finding no error in the record prejudicial to the rights of the defendant, the judgment should be •affirmed, and it is so ordered.