* Headnotes 1. Conspiracy, 12 C.J., sections 226, 231; Homicide, 30 C.J., section 548; 2. Homicide, 30 C.J., section 257; 3. Criminal Law, 16 C.J., section 1110; 4. Arrest, 5 C.J., section 30; On liability of officer for making an arrest without a warrant, for felony, see note in 51 L.R.A., pp. 203, 225; 2 R.C.L., pp. 450, 451; 1 R.C.L. Supp. 543; 4 R.C.L. Supp. 111, 5 R.C.L. Supp. 97, 98; 5. Criminal Law, 16 C.J., section 2109; 6. Homicide, 30 C.J., section 440; 7. Criminal Law, 17 C.J., section 3655; 8. Witnesses, 40 Cyc., p. 2690. Appellant, Ben Pickett, was indicted and convicted in the circuit court of Lauderdale county of the crime of murder, and sentenced to the penitentiary for life, from which judgment he prosecutes this appeal. Appellant assigns as errors thirty-eight different acts of the trial *Page 547 court, and argues most of them. As we view, it, the legal principles involved are well settled in this state. If there be any difficulty in the determination of the questions involved, it consists, not in deciding the legal principles, but in the application of undisputed legal principles to the facts of the case.
There is one assignment of error ably and elaborately urged, and upon the determination of which several other assignments of errors depend; that is, whether or not there was sufficient evidence to go to the jury on the question of conspiracy between the appellant and his brothers, who were at the still when Cleveland, the federal prohibition officer, was killed.
When the sheriff, Cannady, and the deceased, Cleveland, approached the still, according to the state's evidence, a volley of shots were fired at Cleveland from around and behind the still where appellant and his two brothers were stationed. According to the testimony of the sheriff, these shots were fired before either he or the deceased, Cleveland, fired, and after the latter had, in effect, demanded that appellant and those with him at the still lay down their arms and surrender, for Cleveland's demand that they drop their arms could have meant that and nothing else. It is true that no witness swore in so many words that there was a conspiracy between appellant and his brothers to kill the prohibition officer, Cleveland, if he should come to arrest them, but we think there were ample facts and circumstances proven to go to the jury on the question of conspiracy. The evidence was sufficient to go to the jury on the question whether or not appellant was interested in the still, and therefore guilty of a felony in its ownership and operation, and whether they had armed themselves for the purpose of resisting arrest to the death, if necessary, for such felony.
A conspiracy rarely can be shown by direct evidence. Oftentimes it can only be shown by many facts and circumstances taken and considered together, any one of *Page 548 which would be wholly insufficient to establish a conspiracy.
The court gave instructions for the state substantially to the effect that appellant was denied the right of self-defense if the evidence showed he was a felon and armed himself to resist arrest therefor, even though the evidence showed that Cleveland, the deceased, fired the first shot, provided it appeared from the evidence it was necessary for Cleveland to so fire in order to prevent the latter from escaping arrest. The giving of those instructions is assigned as error by appellant. We are of the opinion that they were proper under the particular facts of this case. The principle involved is well illustrated in Tolbert v.State, 71 Miss. 179, 14 So. 462, 42 Am. St. Rep. 454. Tolbert was an escaped convict; he was armed to resist arrest, and so was his brother, who was with him; they encountered persons whom they had reason to believe were in pursuit to arrest Tolbert, the convict. He and his brother immediately prepared to use their arms and shortly began firing. Numerous shots were exchanged. One of the arresting posse was killed by Tolbert, the convict, or his brother. The court held that both of the Tolberts were guilty of murder, although the evidence did not make it certain that they began the firing, and though the posse, being partially concealed, and, being called upon to say who they were, refused to make any response, and did not declare their purpose to arrest. The court said that the very presence of the defendants, armed and ready to resist arrest, was an overt act apparently threatening, justifying killing them on the slightest indication of a purpose to use their weapons; that, therefore, it was not important who fired the first shot.
Appellant assigns as error the action of the court in permitting evidence on the part of the state showing the existence of the still, the fact that appellant was present thereat, and other facts knowledge of which was gotten by Sheriff Cannady alone by virtue of going to the still and finding appellant and his brothers there. There was *Page 549 no search warrant, and, therefore, appellant argues that all those facts so gotten and testified to by the sheriff, under the Tucker case and other cases following that case, should have been ruled out as incompetent. Those cases have no application to the facts here. The still had been located by the prohibition officer, Cleveland. He and the sheriff were not searching for the still; they knew where it was. The possession of the still constituted a felony; its operation constituted another felony on the part of those engaged therein. The sheriff and the prohibition officer, Cleveland, went to destroy the still as it was their duty to do under the statute; and, furthermore, if they went to the place where the still was to arrest those who owned it and operated it, they had a right to do so without a search warrant, because the law is that where the arresting officer knows that a felony has been or is being committed, or has probable ground for believing that a felony has been or is being committed, he has the right to act without either a search warrant or warrant of arrest, and arrest the felon.
The action of the trial court in permitting the state to bring into the courtroom where the appellant was being tried the still and all of its parts, and exhibit it to the jury, is assigned as prejudicial error. We do not think it was. The existence of the still and the description of it was given in evidence by the witnesses. We are unable to see how the presence of the still itself before the jury at the trial could have had any effect except to more plainly exemplify the facts testified to by the witnesses.
The assignment of error based on the action of the court with reference to the juror, Wright, we think, is groundless. The action of the court in holding the investigation as to the truth of McDonald's evidence with reference to the alleged statement of the juror, Wright, was out of the hearing of the jury. We are unable to see how any harm whatever to appellant could have resulted therefrom.
The exclusion of the evidence of the witness Strickland, ruled out by the court, as to threats made by Frank *Page 550 Ethridge, the county attorney, is assigned as error. Appellant argues that he was thereby prevented from showing excuse for his flight after the homicide. In the first place, we are of the opinion that the alleged threat sought to be proven was too vague and indefinite. There was nothing to show, with any degree of certainty, that it was pointed at appellant; and, second, the alleged threat was against moonshiners. If appellant's evidence is to be taken as true, he did not belong to that class.
The action of the district attorney in offering to prove the bad character of appellant is assigned as error. Appellant argues that, although the court refused to permit such evidence, appellant's character not being in issue, nevertheless the fact that the district attorney offered evidence was prejudicial to him. There was no harm shown to have been done appellant by that action of the district attorney. And we are unable to see how it was calculated to harm appellant.
The action of the trial court in permitting the witnesses Chapman and Shannon to testify as to statements made to them in jail by Ebb Pickett, a brother of appellant, is assigned as error. Ebb Pickett was present at the still when the homicide took place, and the state's evidence tended to show that he, with appellant, murdered the deceased, Cleveland; he acting either directly or by aiding and abetting as a co-conspirator. These statements by Ebb Pickett were not admitted as original evidence. He testified for appellant as to the facts of the homicide. His testimony tended to exonerate appellant. On cross-examination he was asked as to certain statements made by him to Chapman and Shannon which conflicted with his evidence on the witness stand, which he denied. Chapman and Shannon were then put on the witness stand to contradict him. If the action of the court in that respect was erroneous, it was not harmful error. It could not have materially influenced the jury.
The action of the court in permitting the county attorney, Frank Ethridge, to testify that, before the homicide, Ebb Pickett made a statement to him threatening *Page 551 the life of the deceased, Cleveland, was not error. There was ample evidence of facts and circumstances going to show that there was an understanding between appellant and his brothers that they would kill Cleveland, the prohibition officer, if he attempted to arrest them for violating the prohibition laws; and that when Ebb Pickett made that statement to Ethridge he meant that he and his brothers, including appellant, if necessary to avoid arrest and prosecution for their unlawful acts, would kill Cleveland, the prohibition officer. We are of the opinion that there is no merit in this assignment of error.
We are unable to see any harmful error in the action of the court in permitting the district attorney in his closing argument, to point out in the presence of the jury the still at which the homicide took place, which was present in court. Furthermore, there does not appear in the record any objection made by appellant to the argument of the district attorney in that respect, nor any special bill of exceptions embodying the language of the district attorney and objection thereto, and the ruling of the court on such objection.
What we have said about having the still in the presence of the jury applies with equal force to the action of the court in permitting the jury to examine the automobile which appellant had when he was arrested.
After a very thorough examination and consideration of the instructions requested by appellant and refused by the court, and the instructions given on behalf of the state and the argument by appellant as to the correctness of the instructions requested by him and refused by the court, as well as the alleged errors in the given instructions for the state, we are of opinion that, although the court probably erred in the giving and refusing of some of the instructions, such errors were without harm to appellant.
Instructions given on behalf of both the state and appellant were numerous and full; they covered every phase of the case; especially every avenue of escape from *Page 552 guilt by appellant was covered by one or more proper instructions given either for the state or the appellant.
Looking at the completed history of the trial, we are of opinion that appellant was denied no substantial right, and that the evidence was ample to justify his conviction by the jury.
Affirmed.