The defendant, James Lil*443ley, was indicted as an accomplice of Lew Garrett in the murder of Henry Hunt, and being convicted, he applied for a new trial and to arrest the judgment. Both the motions were overruled, and he appealed. The grounds of the motion for the new trial are—
1. Because the verdict of the jury was contrary to law.
2. Because the verdict of the jury was contrary to the evidence. ■
3. Because the court erred in its charge to the jury; and in arrest of the judgment, because the verdict of the jury does not respond to the allegations in the indictment; the verdict finding the defendant guilty of murder in the first degree, while he is charged in the indictment as being an accomplice.
The jury found the defendant guilty, and assessed his punishment to hard labor in the penitentiary for life.
The main question for consideration is: Does the evidence support the finding? In our opinion it does not. The evidence was circumstantial. It was shown on the trial that both Garrett and Lilley had unkind feelings towards the deceased at the time of the homicide, as evinced by their declarations of hostility towards him just before the killing, and immediately or very soon after that event. Lilley accused the deceased of having swindled him out of $25 in the settlement of their accounts, and complained that Hunt had taken two of his .horses. He also accused him with having swindled Garrett’s wife out of some cotton.
Whatever else may be said of the conduct of the defendant in this regard, it shows no threat nor any avowed intention to injure the deceased by acts of violence for wrongs done him, real or imaginary. These accusations were made at Garrett’s house on the night of the homicide, and only a few hours before it occurred, and Garrett had told the witness Nicholson on that evening that he was going to kill Hunt that night. These circumstances, *444followed by the tragic event of the night, if not'explained, would not be without force as tending to show a conspiracy to commit the deed with which they are charged. In this connection, however, it must be noticed that Lilley had gone to the house of the deceased on the morning preceding the night of the homicide, and remained there until late in the evening, and was making a settlement of accounts with Hunt, growing out of money transactions between the parties. Hot completing the settlement on that day, the deceased told Lilley to stay with Garrett that night, and to return to his house the next morning for the purpose of completing the settlement which was left unfinished the evening before. There can be no doubt of Lilley’s ill feeling towards the deceased for some days before the homicide took place about the Wallace horses, as appears from the statement of the witness Thacker, that defendant said that these horses had caused more trouble than all the horses in the county, and that somebody would be killed about them yet, “ Mark what I say.” This witness refers to Tom Hunt, a nephew of the deceased, as having purchased some of the Wallace horses; but his allusion to Tom Hunt and his connection with the transaction between the deceased and Lilley is not explained. The witness Markham testifies to a conversation he had with Lilley about the time mentioned by Thacker, and in that conversation Lilley made threats against Tom Hunt, and said he had swindled him about a land trade, and that “ no man could treat him that way and live,” and that he spoke of some trouble he had with deceased about some horses. As presented by the record, it is not free from doubt as to whom the language as given in Thacker’s statement was directed, several persons being mentioned. Lilley, as we have seen, was at the house of Garrett on the night of the homicide, and went with Garrett and his wife to the prayer meeting at Peter Hicholson’s house. The conduct of Garrett on that occasion, his leaving the meeting during its *445progress, the firing of the gun and the killing of Hunt during Garrett’s absence, and which he did not account for, point to him as the guilty party in the murder. Lilley’s remark that he was “ going to sing that night, and it will be long remembered and never forgotten,” and what he said on the way to Hunt’s—“How you see how true it’s come to pass what I was saying to night”—may have been innocent or criminal as the subject referred to may have been the one or the other. He alluded to something he had said that night, and which Garrett had heard; hut whether it was said at the prayer meeting or before, or what it was, is left in doubt from the evidence. As Garrett stayed but a short time at the meeting, and could not have known what was said during his absence, it is probable that Lilley alluded to something he had said before he went to the prayer meeting.
The evidence of Garrett’s guilt as principal could only afl'ect Lillyin so far as it might be evidence that he was an accomplice in the murder; and while the evidence shows that Henry Hunt was murdered at his own house, in the presence of his family, under circumstances of great atrocity, we are constrained to say that the evidence, as it appears upon the record, is not, in our opinion, sufficient to support the verdict against him as accomplice, and that the motion for a new trial should have been granted for that reason.
As the case will be reversed and remanded, it becomes unnecessary to give the other objections a separate consideration. We see no objection to the instructions of the court. The law as applicable to the case was presented to the jury in a very clear and full charge; but because the •verdict was against the evidence, the case is reversed and remanded.
Reversed and remanded.