#### STATE v. SAMUEL SIMMONS.

Where a Judge, in his instructions to the Jury, asked with emphasis, and in an animated tone, where was the evidence to establish a particular fact, it will be taken -that he meant to deny -'that there was any such evidence.

Where, in a trial for murder, it appeared that two ¡persons had formed the purpose of wrongfully assailing the deceased, and one of them, in furtherance of such 'purpose, with a deadly weapon, and without provocation, slew him, it was Held that both were guilly of murder.

This was am indictment for murdee, tried before Saunders, J., at the last Fall Terns of New-Hanover Superior Court.

The indictment charged that the felonious assault was made upon the body of one Nathan Simmons, by John B. Simmons, the son of the present defendant, and that the latter was present, feloniously aiding and assisting in the crime. The cause was removed, as to the defendant Samuel, from the county of Brunswick to the county of New-Hauover, but as to the principal defendant remained to be tried in the former county.

The substance of the evidence was as follows :

One Stanlcmd testified, that he (witness) and the deceased were standing near a fence, when the prisoner came up on the •other side ef it, having a gun. John B. Simmons, who was *22•the son of the prisoner, came up on the same side' with the deceased, the latter also having a gun. The prisoner immediately accosted the deceased, and accused him of having-killed his cow, and at the same time struck him with his gun; at the same time, John, the son, fell upon the deceased and stabbed him with a knife. The deceased ran off and was followed by John the son, to whom the prisoner called, directing him to take him. The deceased ran about fifty yards and fell dead. John immediately returned to where the assault was made, bringing- back the gun of the deceased, and having in his hand the knife with which the blow was inflicted. When the persons present went up to the body, and one of them said, John had done it, the prisoner replied, “ good enough for him.” The witness stated that when the deceased was approached by the prisoner and his son, he was leaning against the fence, with his gun on the ground lying against his shoulder; that he did not raise it, or offer to raise it, until the prisoner struck; “ he then raised it, but neither pointed it, nor offered to strike, or use it in any way; at this moment, John struck, and the deceased ran off, having the gun in his hand.”

One- IiicJcman, gave nearly the same account of the assault as the preceding witness. As to the deportment of the deceased, he stated that he was leaning against the fence, his gun on the ground, resting on his arm. His hand was on the barrel, six inches or a foot from the muzzle, but the deceased did not raise it until after the prisoner struck, nor until John gave him two thrusts with a knife ; he then raised it, but did not attempt to use it in any way.

There was other evidence as to the common intent, and of a purpose to take the deceased; that John, as well as the other bystanders, were called on by the prisoner, to take the deceased, and were threated with the law if they did not assist. There was evidence that the prisoner said a few days after the occurrence, “ he wished he had split the deceased’s brains out.”

The Court charged the jury that, “should they be satisfied *23that the father and his son went in pursuit of the deceased, supposing him to have killed the cow, with the design of doing an. unlawful act, and with the common purpose and understanding that they were to aid and assist each other, both being present at the commission of the act, each would be responsible for the acts of the other: So, if the jury should be satisfied that the prisoner struck the deceased with a deadly weapon, (and a gun was a deadly weapon) without any legal provocation, (and no such provocation had been shown) and the son, at the time he gave the stab, was excited or stimulated to do the act by any previous understanding with the prisoner, or by any thing he may have said or done at the time, he would be equally guilty with the son, and the jury in considering this question, after giving the prisoner the weight his good character deserved, had the right, and it was their duty to consider what had been said by the prisoner before — what he said or did at the time, as well as afterwards, in order to ascertain the quo a/nimo, or motives which influenced the prisoner.” Defendant’s counsel excepted.

The prisoner’s counsel asked the Court to charge, that if the son had reasonable ground to believe, at the time he gave the mortal stab, that his father’s life was in peril, he had a right to kill, if necessary to save him. In response his Honor stated, “ no doubt the son would have the right to interpose in behalf of the father ; but he must show a proper case of interference ; his word would not do ; the evidence must satisfy the j ury that such was the fact, and the Court asked with emphasis, and in somewhat an animated tone, “where was the evidence to establish the fact ?” The defendant’s counsel excepted.

The defendant was found guilty of murder. Judgment and appeal.-

Attorney General, for the State.

M. G. Haywood, for the defendant.

Peabsokt, C. J.

Owing to the emphasis and animated tone, *24with which his Honor 'put the interrogatory, “ where was the evidence to -establish the fact,” the prisoner is entitled to have the question considered as if the Judge had instructed the jury,'“there was n© evidence of the fact.”

The fact alleged was, that the prisoner’s son, at the time he gave the mortal stab, had reasonable ground to believe that his father’s life was in peril. This allegation is made by way of justification, or excuse, and the onus is upon the prisoner. We are of opinion that there was no evidence upon which the jury could have found the fact-

The testimony of the witness Stanland, is the only part of the evidence which furnishes a plausible ground for the suggestion of the existence of the fact, but upon examination, his testimony, so far from establishing the fact, negatives its existence. This witness and Hiehnun differ as to the precise moment of time, considered relatively, at which the deceased raised the gun. The one thinks it was just after he was stabbed ; the other thinks it was just before he was stabbed. But neither of them represents the act of raising the gun as any thing more than a mere consequence of a change of position in the act of running off. The deceased and the prisoner were on different sides of the fence, and the manner of raising the gun did not furnish the slightest indication of a purpose to use it offensively. The witness Stanland, upon whom the prisoner relies, says, “ after the prisoner struck, he (the deceased) then raised it, but neither pointed it — offered to strike or use it in any way. At this moment John struck, and the deceased ran off, having the gun in his hand.” So, the fact alleged, i. e., that there was a reasonable ground to believe that the prisoner’s life was in peril, by reason of the ma/nner in which the gun was raised, is negatived, and the precise moment — whether just before or just after the stab, was not material; for taking it to have been before, it was not done in a menacing manner.

We can see no error in the charge. It is a well established principle, that where two agree to do an unlawful act, each is responsible for the act of the other, provided it be done in *25pursuance of the original understanding, or in furtherance of the common purpose. There was evidence, that the prisoner and his son had formed the purpose of beating the deceased, or of arresting him without a warrant, which is equally unlawful, and the act -of the son was clearly in furtherance of the common purpose, so as t© make the prisoner responsible for it; Foster’s Crown Law, 351, 352. There is no error.

PeR Cüeiam, Judgment affirmed.