This case was decided at a previous day of this term, and the judgment of the lower court affirmed, and it now comes before us on a motion for rehearing by appellants. If it be conceded, as claimed by appellants, that the court (in the bill of exception taken) certifies, "That there was evidence tending to show that the defendants went to the place where Andrew and Tom Prikryl were, not with the intention of killing them, or either of them, but for the purpose *Page 458 of giving them a whipping, and that from the act of Andrew Prikryl, in attempting to use his gun upon the defendants, and take their lives, it became necessary for the defendants to use more force than was first intended by them in engaging in the difficult," we cannot concede that it follows, as a necessary conclusion, as insisted by appellants, that the killing was upon adequate cause, and so the homicide was manslaughter. It will be noted that the act of the defendant which caused Prikryl to use his gun in resistance is not stated. From the bill as stated, it appears that the defendants were carrying out their purpose to give the Prikryls a whipping, and, in resistance thereto, Andrew Prikryl, to prevent the same, used his gun, and that then it became necessary for the defendants to use more force than was first intended; that is, to kill the Prikryls, in order to carry out their original purpose. Such a killing would appear to be without any adequate cause; and so, if the killing was upon passion and excitement, it would at least be murder in the second degree. The bill, even according to the contention of the appellants, does not show any provocation on the part of the Prikryls. But for aught that appears, the appellants, in carrying out their original purpose to give the Prikryls a whipping, made it necessary for the Prikryls, in order to prevent the same, to act upon the defensive, and use a gun; and if, then, in order to carry out the common purpose, to kill the Prikryls, in order to accomplish the whipping, the appellants committed the homicide, the case would undoubtedly be one of murder. But, as heretofore stated in the original opinion, this bill of exception is not a certificate that these facts were in evidence, much less that they were all of the facts upon the issue in question. Moreover, concede that the court below made a mistake in presenting this issue to the jury, upon the facts stated, as murder in the second degree instead of manslaughter, which is contended by the appellants should have been given; then it is a sufficient answer to this proposition to say that the appellants in this case were not convicted of murder in the second degree, but the verdict was for murder in the first degree. So, it appears that the jury did not credit the facts which presented the theory of murder in the second degree. If they had found a verdict of murder in the second degree, then there might be some plausibility in the contention of the appellants in this case; but, as the question presents itself to us now, the charge of the court could not possibly have injured the rights of the appellants, inasmuch as it was not calculated to influence the jury to find appellants guilty of murder of the first degree. The motion for rehearing is overruled.
Motion for Rehearing Overruled.