a burglary, and one of them commits murder in order to accomplish the common purpose, all are guilty of murder.27 The same is true of persons who combine with or procure others to commit, or who aid or abet others in committing robbery, 28 or in committing grand themselves with the declared purpose of fighting white men, and one of them shoots a white man, all are guilty of murder. Hicks v. State, 143 Ark. 158, 220 S. W. 308. See also the other cases cited in the following notes. 27 Starks v. State, 137 Ala. 9, 34 So. 687; McMahon v. People, 189 Ill. 222, 59 N. E. 584; Conrad v. State, 75 Ohio St. 52, 78 N. E. 957, 6 L. R. A. (N. S.) 1154, 8 Ann. Cas. 966; Mitchell v. Com., 33 Gratt. (Va.) 845. And see Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Ruloff v. People, 45 N. Y. 213. Where all are armed with loaded revolvers to resist interference with their plans, the natural presumption is that there will be shooting if it is found necessary to accomplish the original purpose. People v. Andrae, 295 Ill. 445, 129 N. E. 178. 28 United States. Boyd v. United States, 142 U. S. 450, 35 L. Ed. 1077, 12 Sup. Ct. 292. California. People v. Raber, 168 Cal. 316, 143 Pac. 317; People v. Lawrence, 143 Cal. 148, 76 Pac. 893, 68 L. R. A. 193; People v. Vasquez, 49 Cal. 560. Colorado. Reagan v. People, 49 Colo. 316, 112 Pac. 785. Michigan. See People v. Belton, 160 Mich. 416, 125 N. W. 386. Minnesota. State v. Barrett, 40 Minn. 77, 41 N. W. 463. Nebraska. Romero v. State, 101 Neb. 650, 164 N. W. 554, L. R. A. 1918 B 70, where one of several burglars shot a watchman who was attempting to arrest them. Nevada. State v. Beck, 42 Nev. 209, 174 Pac. 714; State v. Hamilton, 13 Nev. 386. New Jersey. Roesel v. State, 62 N. J. L. 216, 41 Atl. 408. New York. People v. Michalow, 229 N. Y. 325, 128 N. E. 228; People v. Guisto, 206 N. Y. 67, 99 N. E. 190; People v. Friedman, 205 N. Y. 161, 98 N. E. 471, 45 L. R. A. (N. S.) 55. Oklahoma. Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. Pennsylvania. Com. v. De Leo, 242 Pa. 510, 89 Atl. 584; Com. v. Major, 198 Pa. 290, 47 Atl. 741, 82 Am. St. Rep. 803. Texas. See Taylor v. State, 41 Tex. Cr. 564, 55 S. W. 961. Utah. State v. King, 24 Utah 482, 68 Pac. 418, 91 Am. St. Rep. 808. Wisconsin. Miller v. State, 25 Wis. 384. An accessary before the fact to a robbery is guilty of a murder committed in the perpetration or attempted perpetration of the robbery, though not present. People v. Keefer, 65 Cal. 232, 3 Pac. 818. "If A. adviseth B. to rob C., and he doth rob him, and in doing so, either upon resistance made or to conceal the fact, or upon any other motive operating at the time of the robbery, he killed him, A. is accessary to the murder.'' Fost. C. L. 370; State v. Davis, 87 N. C. 514; Saunders' Case, 2 Plowd. 473. One who procures another to commit a robbery is an accessary before the fact to a murder committed by the latter to conceal the robbery. State v. Davis, 87 N. C. 514. In Miller v. State, 25 Wis. 384, the wife of the defendant, without fear larceny,29 or such an assault that death may naturally or probably result,30 or where a homicide is committed by one of several persons who combine or conspire to unlawfully take a person out of a private house,31 or to invade a foreign country,32 or to escape from the custody or compulsion from him, agreed with him to go to the store of the deceased, and to rob it, the husband telling her, and she believing, that he did not intend to kill the deceased, but only to knock him down, so as to stun him, in order to consummate the robbery. They went together, and the husband, in carrying out the plan, gave the deceased a fatal blow, the wife giving no intentional assistance. A charge was sustained which justified the jury, under this state of facts, in finding her guilty of murder. 29 People v. Olsen, 80 Cal. 122, 22 Pac. 125. Iowa. State v. Maloy, 44 Iowa 104. Mississippi. Peden v. State, 61 Miss. 267, where the killing was done in carrying out a conspiracy to take the deceased from his home and whip him. Missouri. State v. Darling, 216 Mo. 450, 115 S. W. 1002, 23 L R. A. (N. S.) 272, 129 Am. St. Rep. 526. Ohio. State v. Doty, 94 Ohio St. 258, 113 N. E. 811; Goins v. State, 46 Ohio St. 457, 21 N. E. 476. Texas. Bibby v. State (Tex. Cr.), 65 S. W. 193; Mitchell v. State, 36 Tex. Cr. 278, 33 S. W. 367, 36 S. W. 456. England. Saunders' Case, 2 Plowd. "If A. commands B. to beat C., and B. beats C. so that he dies, A. is accessary, because it may be a probable consequence of his beating." 1 Hale P. C. 617; Reg. v. Caton, 12 Cox C. C. 624. Where five or six persons conspired together to invade a man's household, and went there armed with deadly weapons for the purpose of attacking and beating him, and, in furtherance of this common design, one of them got into a difficulty with him, and killed him, the others being present, or near at hand, it was held that all were guilty of murder, although they did not intend to kill. Williams v. State, 81 Ala. 1, 1 So. 179. See also Peden v. State, 61 Miss. 268. One who is present, aiding and abetting in an assault which results in the death of the person assaulted, is equally guilty of homicide, although he did not strike the fatal blow. People v. Barrett, 261 Ill. 232, 103 N. E. 969; Ritzman v. People, 110 Ill. 362; Coates v. People, 72 Ill. 303. Where respondent interfered in a fight between two others, knocking one of them down whereupon the other immediately kicked him so that he died, respondent was responsible for the death. People v. Carter, 96 Mich. 583, 56 N. W. 79. The contrary has been held to be true where the purpose is to commit a simple assault merely, in a manner not dangerous to life. See § 262, infra. 31 Evans v. State, 109 Ala. 11, 19 So. 535. 32 Gonzales v. State, 74 Tex. Cr. 458, 171 S. W. 1146. 473. 36 of an officer, or from prison,34 or to rescue a person from the custody of officers of the law,35 or to commit a breach of the peace, or to resist an officer in the discharge of his official duty,87 or with force and arms to drive over a disputed section of road.88 If two or more conspire to kill one person and one of them kills another person incidentally in the execution of the common design, and as one of its probable and natural consequences, all are equally guilty.39 And if the principal, in attempting to commit the crime. to which he was incited, by mistake, accident or design commits another crime, a person inciting is accessary to the crime actually committed. So if one commands or counsels another to kill a certain person and he accidentally or through mistake kills a different person, the person so commanding or counseling is an accessary to the murder actually committed.40 § 262. - Acts outside the common purpose. As we have seen, it is not always necessary, in order to hold a person responsible as 33 Where two persons fleeing together from arrest are apprehended, and while in custody one of them in an attempt to escape shoots the of ficer, while his companion, evidently knowing his purpose, actively aids in effecting it, though he uses no weapon, both are equally guilty. Imperio v. State, 153 Wis. 455, 141 N. W. 241. 34 Where two convicts conspire and combine together to escape from prison, and to use such force as may be necessary to accomplish that purpose, and one of them shoots a guard while they are attempting to escape, the other may be convicted of murder, although there was no specific agreement to kill any one who opposed them. People v. Creeks, 170 Cal. 368, 149 Pac. 821. Where two convicts attempting to escape by force strike a keeper at the same time, and he dies as a result of the blows, both are guilty of murder, regardless of which struck the fatal blow, and whether either intended to take life or not. People v. Flanigan, 174 N. Y. 356, 66 N. E. 988. 35 State v. Cook, 81 W. Va. 686, 95 S. E. 792. 36 People v. Ford, 25 Cal. App. 388, 143 Pac. 1075. 37 People v. 143 Pac. 1075. Ford, 25 Cal. App. 388, 38 Eaton v. State, 8 Ala. App. 136, 63 So. 41; Pearce v. State, 4 Ala. App. 32, 58 So. 996. 39 As where the original purpose is to kill all who stand in the way of the execution of the common design. Martin v. State, 136 Ala. 32, 34 So. 205. 40 This applies equally to accessaries and principals in the second degree. State v. Kennedy, 85 S. C. 146, 67 S. E. 152. In Texas this is the rule by statute. But to sustain a conviction under this provision the mistake or accident must be alleged. Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989. But if a man commands or counsels another to kill one person, and the other of his own independent design a principal in the second degree or an accessary or aider and abettor, to show that he contemplated or expressly consented to the commission of the particular crime committed.41 But, on the other hand, it is not always enough to show that he counseled, commanded, or consented to some other crime. If several persons combine or conspire to commit one crime, and one of them goes outside of the common purpose and commits another crime, which is not a natural or probable consequence of carrying out the common purpose, the others are not responsible.42 If several combine to steal from a safe kills a different person, he is not an accessary to the murder. See § 261, supra. 41 See § 260, supra. 42 Alabama. Martin v. State, 136 Ala. 32, 34 So. 205; McLeroy v. State, 120 Ala. 274, 25 So. 247; Alston v. State, 109 Ala. 51, 20 So. 81; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91; Jordan v. State, 81 Ala. 20, 1 So. 577; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133; Fraunk v. State, 27 Ala. 37. California. People v. Creeks, 170 Cal. 368, 149 Pac. 821; People v. Kauffman, 152 Cal. 331, 92 Pac. 861; People v. Leith, 52 Cal. 251; People v. Ford, 25 Cal. App. 388, 143 Pac. 1075. District of Columbia. Patten v. United States, 42 App. Cas. 239. Georgia. Handley v. State, 115 Ga. 584, 41 S. E. 992. Illinois. Lamb v. People, 96 Ill. 73. Iowa. State v. Lucas, 55 Iowa 321, 7 N. W. 583. Kansas. State v. Keleher, 74 Kan. 631, 87 Pac. 738. Kentucky. Powers v. Com., 110 Ky. 386, 61 S. W. 735, 63 S. W. 976, 53 L. R. A. 245. Massachusetts. Com. v. Campbell, 7 Allen (89 Mass.) 541, 83 Am. Dec. 705. Michigan. People v. Belton, 160 Mich. 416, 125 N. W. 386; People v. Knapp, 26 Mich. 112. Missouri. State v. Darling, 216 Mo. 450, 115 S. W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526; State v. May, 142 Mo. 135, 43 S. W. 637; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54. North Carolina. State v. Powell, 168 N. C. 134, 83 S. E. 310. Ohio. Woolweaver v. State, 50 Ohio St. 277, 34 N. E. 352, 40 Am. St. Rep. 667. South Carolina. State v. Kennedy, 85 S. C. 146, 67 S. E. 152. Texas. Serrato v. State, 74 Tex. Cr. 413, 171 S. W. 1133; Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901; Mercersmith v. State, 8 Tex. App. 211. Virginia. Kemp v. Com., 80 Va. 443. West Virginia. Watts v. State, 5 W. Va. 532. "There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen, if occasion should arise for anyone to do it." People v. Belton, 160 Mich. 416, 125 N. W. 386; People v. Knapp, 26 Mich. 112. "If A. command or counsel B. to commit felony of one kind, and B. commits a felony of another kind, A. is not accessary; as, if A. command B. to steal a plate, and B. commits burglary to steal a plate, A. is accessary to the theft, but not to the in a building, and one of them, in the absence of the others, robs a watchman in the building, the others are not accessaries to the robbery.48 And if a person commands or counsels another to steal from a certain person or to steal a certain article, and the other steals from some other person, or steals some other thing, the person commanding or counseling is not accessary to the larceny. So, too, one who counsels or procures another to commit burglary with intent to feloniously assault a certain person is not responsible for a rape committed by the principal upon a different person.45 And if a man commands or counsels another to kill one person, and the other, of his own independent design, kills a different person, he is not an accessary to the murder.46 It has also been held that if two or more combine to commit a simple assault, merely, and one of them kills the person assaulted, the others are not responsible for the homicide merely because they were parties to the conspiracy or combination.47 And the same rule has been applied where two Where two brothers were jointly indicted and tried for murder, and it was shown that one fired the fatal shot, while the other cut the deceased with a knife, while running by him towards the one who had the pistol, it was held that the one who cut with the knife could not be convicted as aiding and abetting his brother, unless there was preconcert of purpose between them, or unless he aided and abetted his brother, having knowledge of the other's purpose. Jordan v. State, 81 Ala. 20, 1 So. 577. If several combine to assist a girl to elope, the others are not criminally responsible for the act of one of them in using obscene language in the presence of the female. Handley v. State, 115 Ga. 584, 41 S. E. 992. 43 State v. Lucas, 55 Iowa, 321, 7 N. W. 583, Beale's Cas. 396. 441 Hale P. C. 617. 45 Watts v. State, 5 W. Va. 532. 46 1 Hale P. C. 617; Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989; Saunders' Case, 2 Plowd. 473n. The rule is otherwise where he kills a different person as the result of a mistake. See § 261, supra. 47 Henderson v. State, 11 Ala. App. 37, 65 So. 721; People v. Koharski, 177 Mich. 194, 142 N. W. 1097. One who encouraged the defendant to tie the deceased is not responsible for the killing of the deceased by the defendant by his own independent and malicious act. People v. Keefer, 65 Cal. 232, 3 Pac. 818. Where nothing more is contemplated than an assault and battery with the hands and fists, not dangerous to life, and one of the parties kills the person assaulted with a deadly weapon, the others are not responsible. State v. May, 142 Mo. 135, 43 S. W. 637; Mitchell v. State, 36 Tex. Cr. 278, 33 S. W. 367, 36 S. W. 456; Bibby v. State (Tex. Cr.), 65 S. W. 193. Where three persons agree to put turpentine and gasoline upon the clothes of a drunken man with the |