I concur in the part of the opinion resulting in the conviction of Marshall but do not believe the judgment affirming his conviction necessarily results in defendant McCree being also guilty of murder. The latter is found guilty because of participating in an unlawful assembly. The fact that McCree loaned Marshall a gun, without something more, is not proof that an unlawful assembly was in existence at the time the shot was fired, nor is there proof an unlawful assembly existed in fact. The proof shows the assembly of which McCree was a part was in the first instance peaceable and assembled for a peaceable purpose. In my judgment it is not sufficient to make McCree guilty of participation in the crime of murder from the fact, alone, that Marshall, from fear or panic, fired the fatal shot and turned a lawful assembly into an unlawful one. The elements of intent and malice necessary to a conviction of murder, under such circumstances, are absent, and for this reason I think the defendant McCree is entitled to a new trial. *Page 265