— -I. The indictment alleges the deceased came to his death by _ defendant’s shooting him with a gun. The proof showed he was shot with a pistol, and defendant objected to the evidence of his having been shot with a pistol, but the court admitted the evidence, and defendant excepted. The variance is immaterial, since the two weapons are the' same in character, and inflict the same character of wound. Hall v. The State, 79 Ala. 32.
II. The general charge asked by the defendant was properly refused. We are unable to determine very clearly, from the bill of exceptions, whether John Tolbert, who shot the deceased went with defendant to the place of difficulty *59between. Mm and deceased, or not. If it appeared he did not, but was there beforehand, or afterwards, by accident, and not by pre-arrangement between him and defendant, the charge might well have been given.
III. The second charge was incomplete and confusing and, therefore, properly refused.
TV. It was not necessary for the defendant and John Tolbert to have entered into and made a conspiracy, actually to take the life of the deceased, prior to the difficulty. To establish a conspiracy, it is not always necessary to show pre-arrangement to do the particular wrongful act committed. But, it is true, that when two or more persons enter upon an unlawful purpose, with a common intent to aid or encourage each other in carrying out their common design, they are each responsible civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not. Martin v. The State, 89 Ala. 115.
Charge number 3 is not in harmony with the principle thus stated, was liable to mislead, and was properly refused.
Y. The fourth charge requesting the court to instruct the jury: “If they believed from the evidence, that the defendant and the deceased were engaged in a fight, and while they were so engaged, one John Tolbert came up, and without the knowledge, consent or connivance of defendant, inflicted a mortal wound on the deceased, then they should find defendant not guilty,” — ought to have been given, for there was evidence on which the jury might have found, that there was no arrangement or conspiracy between defendant and said John Tolbert, at the time of the difficulty, or before that time, to do any wrongful act to the deceased. For the refusal to give this charge, the judgment must be reversed.
Beversed and remanded.