This case is a companion to that of George Moore v. The State, the judgment in which was reversed and the cause remanded at a former day of this term. Phelps and Moore were separately indicted and tried for the murder of Sam. Boyd, and were each convicted of murder in the first degree, with the penalty assessed at confinement in the penitentiary for life.
While the two convictions are for the same criminal act, the evidence upon which they are based, and the legal questions involved, are essentially distinct and dissimilar in several material respects. We shall not discuss in detail the numerous errors assigned and ably argued, both orally and by briefs. Our view of the - facts of the case, in our judgment, renders immaterial and inapplicable many of these questions.
In order that we may arrive more directly and intelligibly at a decision of this case, we will first state the conclusions of fact which we have deduced from the evidence as presented in the record.
This defendant and George Moore were relatives and intimate and confidential friends and associates. They were in the town of Commerce together on the occasion of the first altercation between Moore and Boyd, which occurred a few days before the homicide, and had private conferences together immediately after that altercation. They had agreed to leave the county and go west together. They came into Commerce together on tne day of the homicide, armed with, six shooters, and remained together, drinking and carousing, and together they provoked a difficulty with the deceased, and together they shot and killed him. Having accomplished the death of Boyd, they left Commerce together, and together they fled the country. They were together and acting together from the inception to the termination of the tragedy, and even up to the time of their arrest in another State; .and during the transactions of that fatal day of the killing, this defendant appears to have been the adviser, and to a considerable extent the controller, of his companion Moore.
2. This defendant, without any provocation directed toward him, coolly and deliberately shot the deceased in the back, inflicting a mortal wound, which caused the deceased to fall from his horse. Hot satisfied with this, he coolly and deliberately, while deceased was engaged in a death struggle with Moore, *55shot him a second time in the back, inflicting another mortal wound.
3. When deceased was advancing upon Moore, in a threatening manner, this defendant, instead of endeavoring in a peaceable way to prevent the impending danger, encouraged, invited and incited the deceased to continue the attack upon Moore, and immediately placed himself in readiness to shoot and kill the deceased.
4. The attack by Boyd upon Moore was not of that character which made it reasonably appear that it was being made with the purpose and intent on the part of Boyd to murder or maim, etc. It was not shown that the quirt, the instrument with which Boyd was assaulting Moore, was a deadly or even a dangerous weapon, calculated to produce death, or even ' serious bodily harm; while, on the other hand, it was shown that Moore was well prepared to meet the attack of Boyd, being armed with a six shooter, and in a favorable position to use the same to advantage.
Finding the facts of the case as above summarized, we are of the opinion that, in so far as relates to this defendant, he is beyond reasonable doubt guilty of murder in the first degree, as found by the verdict of the jury. We cannot see that the evidence raises the issues of justifiable homicide, manslaughter, or even murder in the second degree.
. We think the court did not err in refusing his application to continue the case. Bindley was not a competent witness for him, as decided in Moore’s case. {Ante, 1.) The facts which he stated he expected to prove by the other witnesses do not appear, from the other evidence in the case, to have been probably true, and, even if true, would not, we think, have changed the character of the homicide^ or affected the result of the trial. There was no evidence admitted which, in our opinion, was not clearly competent. Moore’s acts, declarations and motives, prior to and at the time of the killing, were admissible against defendant, because, in the opinion of the trial judge and in our opinion, the evidence sufficiently showed that it was their common design and purpose to accomplish the death of Boyd. They were connected, and, as it were, so closely consolidated, with each other'by the testimony, as to make the acts and declarations of one those of the other. As to the acts and declarations of Moore immediately after the killing, while fleeing from the scene of the killing in company with this defendant, they were *56clearly a part of the res gestae, and were admissible as such, if upon no other ground.
Opinion delivered November 10, 1883.Many objections are urged by defendant’s counsel to the charge of the court. We regard the charge, taken altogether, as a very able and explicit exposition of the law of the case, and in some respects more favorable to the defendant than he was entitled to under the facts. It may be, as was remarked in Moore’s case, that the language of the charge, in treating of express malice, was not as critically correct as it should have been, and that there was more prominence given to express malice than would in some instances be proper; still we think the charge embraced nothing but sound propositions of law, which were pertinent to the evidence, and there is no such error in the charge as was reasonably calculated to prejudice the rights of the defendant. As before remarked, we are of the opinion that the facts of this case did not raise the issues of justifiable homicide, manslaughter, or even murder in the second degree; and yet the trial judge gave the defendant the benefit of instructions upon justifiable homicide and murder in the second degree.
We have carefully and thoroughly examined every question presented in the record on behalf of defendant, and we conclude that no substantial error appears in the proceedings, trial and conviction. We are of the opinion that the defendant has been accorded a fair- and impartial trial, and that, in accordance with the evidence and the law, he has been not only legally but justly convicted of murder in the first degree.
The judgment is affirmed.
Affirmed.