This is an application for bail, after indictment found charging the petitioners with murder in the first degree. On a hearing, the judge dismissed the *71petition and remanded the prisoners to jail. The correctness of the ruling of the judge upon the trial is assailed only in one particular.
The evidence establishes that the father of these petitioners shot and killed a deputy sheriff in resisting his arrest by that officer and others. No justification is shoAvn for the killing. And it is reasonably certain that had these petitioners not interefered, the killing would not have occurred. Indeed, their father Avould have been overpoAvered by the officers Avithout bodily harm to him and thus been rendered impotent to have procured and used the pistol with which he inflicted the deadly wounds, had they not by their conduct freed one of his hands from the grasp of the officer who ivas killed. That these petitioners’ conduct, under the evidence, was the cause of the killing scarcely admits of doubt. But it is said that the father was insane at the time of the killing and that his insanity Avas knoAvn to the petitioners, and that they should have been permitted to prove these facts. The theory seems to be that if he was insane," and therefore incapable of committing murder, the father to commit the crime, they are responsible for this act of firing the pistol Avhich produced the death of the officer. Had the trial judge permitted this proof to have been made and had found in line Avith it, in view of the conduct of the petitioners on the occasion of the homicide, which was calculated to incite and did incite the father to commit the crime, they are responsible for his act. As said by Mr. Bishop, “The method of tlie killing is immaterial. Thus * * * in some cases a man shall be said, in the judgment of the law, to kill one who is in truth actually killed by another, as where one incites a. madman to kill himself or another.”' — 2 Bishop’s New Grim. Lrav, § 635.
This principle is stated by Bussell on Crimes', p. 5, in this language: “If A. procures B., an idiot, or lunatic, to kill O., A. is guilty of the murder as principal, and B. is merely an instrument.” See also 1 East. P. O. Oh. V., § 14, p. 228; 1 Hawkins P. 0., § 7, p. 92.
Affirmed.
*72McClellan, C. J., Simpson and Anderson, J.J., concurring.