Peden v. State

Campbell, C. J.,

delivered the opinion of the court.

The instructions complained of are not “marked” as required by the statute to make them part of the record, and are not contained in the bill of exceptions, and, therefore, cannot be noticed. We are confined to the first and third grounds of error assigned, viz.: the admission of the testimony of the witness Thornton, and that the verdict is contrary to the law and evidence. We are not able to perceive that the testimony of Thornton was of any value whatever. It was not inadmissible so far as we can see, but it is inconceivable that it exerted any influence on the jury. Its admission was not *270 erroneous. The evidence shows that the appellant and several others banded together to take Walker from his house and whip him, and that he was taken from his bed and severely beaten, and that ten days afterward he died from the effect of a blow on the head which superinduced inflammation of the brain. The fatal blow was struck by Amos Davis, one of the party, with a spade. The evidence suggests that the death of Walker was not contemplated by the parties at the outset, and that their purpose was bounded by the flogging of Walker. A number of persons having conspired together to do the unlawful act of beating Walker, the law makes no distinction between them, and each is responsible for the act of any of the party in the prosecution of the design, and, if death happened in the prosecution of such design, all are guilty of murder, if the person who caused the 'death is. It matters not that the purpose to kill Walker was not’entertained by all or by any at the outset. “If two or more combine to do an unlawful thing, and the act of one proceeding, according to the common plan, terminates in a criminal result, though not the particular result intended, all are liable.” “All who are responsible for what is done unlawfully are so for its entire consequences, whether contemplated or accidental.” 1 Bishop on C. L., § 636. It is claimed that as the fatal blow was struck by Davis, and the evidence negatives the idea that there was any intent on the part of the accused to kill, he could not be guilty of murder, but on the principle of joint responsibility between the parties unlawfully engaged, the guilt of Davis is imputable to the'accused. Whether or not Davis was guilty of murder depends on whether lie struck the fatal blow with deliberate design to effect the death of Walker. If he did, he was guilty of murder. The jury must have found that Davis intended to kill Walker, or it would not have found the appellant guilty of murder. We think the evidence warrants this finding. It shows that Davis struck the deceased over the head with a spade with such violence as to break the handle and inflict a severe wound which caused death. It is fair to presume that Davis intended to'kill Walker.

Affirmed.