ON APPLICATION FOR REHEARING.
Counsel for defendant in an application for rehearing insist, with what seems to us some degree .of force and plausibility, that charge 15 is not subject, to the criticism made of it. T'he contention is that the vice of a charge that is condemned for singling out detached portions of the evidence consists in giving undue prominence to a part of the evidence for the consideration of the jury, the charge thus having a tendency to cause the jury to give undue weight to the evidence singled out. Our attention is called to the fact that charge 15 does not single out a detached portion of the evidence for the consideration of the jury to which they might give undue Ave:ght, but that the charge is hypothesized upon an exclusion from consideration, or giving any weight, upon the hypothesis stated, to that certain portion of the evidence singled out.
The charge does purpose to instruct as to the effect of only a part of the evidence introduced to show conspiracy, and would have tended to obscure and divert consideration from other parts of the evidence bearing on the same subject, and is faulty in this respect. — Ferguson v. State, 141 Ala. 20, 28, 37 South. 448; Grant v. State, 97 Ala. 35, 11 South. 915.
But however that may be, the trial court cannot be put in error for having refused the charge under the facts in this case. The defendant’s guilt did not depend solely on proof of the theory of a conspiracy. As said in the opinion rendered, “the evidence showed that the defendant was present at the time of the commission of *144[the offense; there was evidence affording an inference that he was present in pursuance of a common enterprise or adventure, having in contemplation the commission of the offense charged, to render assistance if necessary, or support or "encourage by his acts, words, or presence the actual perpetrator; and, if so, he was an áidér; oí*: ¿bettor.” There was also; evidence going to show fhát the defendant wás working for John Pearcé, bbgáged in hauling lumber; that there was trouble ‘brewing between Pearce ánd Shelt oí* Sarge Kennedy Wei*'the right to üse a certain road for this purposé, ánd that-'the défeñdánt knéw this,' ánd wás aware of the lack’ tiíát the::roád had" been barricáded, ánd-went'oh ,the'lmt»rhíngr'ofitheí;fátál difficulty,4' along4’with- John Péárce, John Fowler,1 Cross1-Pearce,- Léon Dyer, and others, for the avowed purpose of clear in g out the road. That their mission-was hot áítogether for-a lawful purpose’ with a peácéful-heiff bf'mind might be-gathered ■from the circumstance's attending -their going, áhd from the further fact, shown by the évideu ce, that John Pearce carri:édi ;¿ pistol áhd Winchester' rifle, John Fowler, a rifle, or “army gun,” Cross Pearce'-a dbiible-barreled 'shotgúh, ¿nd the'! defendant a single-barreled shotgun. 'The incident tésfiñéd to about" tlie cartridges being -given to Dyer by Pearcé to be banded to Fowler took place' only a- -few "minutés beforé these'identical "parties (tógethér’ with the1 defendant and-'-others) gathered together -at Pearce’s sawmill and went' forth heavily armed, in a body, to clear the obstruction from the -road, abcHit"a! quarter :of a mile distant, where the difficulty arose1 and the killing took place over removing the barricade. The defendant did not deny going to the place hf-the killing with these parties and carrying the shotgun, ánd being present throughout the bloody affray, buíf'cláimed1 tó! have "put aside the guh 'after arriving *145there, and not to have participated in or in any way encouraged the killing by word or act. Clearly, under this phase of the evidence, it was open for the jury to infer that the defendant was an accomplice, an encoura-ager, present for the purpose of aiding and abetting in the commission of the crime; and the incident testified to about the cartridges is so- intimately connected with the whole transaction showing the general design and purpose of the participants to do some unlawful act, resulting in the killing of Kennedy as a part of the common purpose, that the jury might properly look to it in that connection without regard to whether the. jury believed a conspiracy prior in point of time, having in view the particular purpose to assault Sarge or Shelt Kennedy, had been formed between the defendant and Pearce.
As a charge on the question of conspiracy, it improperly asserted that to establish a conspiracy it was necessary to show prearrangement to do the particular wrongful act which was committed. It was enough to warrant the consideration by the jury of the evidence mentioned if they found, from other evidence in the case, that Pearce and the defendant entered into a common illegal purpose or enterprise, of which the subsequent assault was a consequence or proximate result, though the particular wrongful act was not contemplated at the time the unlawful common design was formed. — Jones v. State, 174 Ala. 53, 57 South. 31; Green v. State, 97 Ala. 59, 12 South. 416, 15 South. 242. There was evidence tending to prove that the defendant knew of and cooperated in Pearce’s purpose Avith force and arms to carry his teams over the disputed section of the road, and that the subsequent killing Avas a result of this common purpose. This was enough though the participants in the unlawful venture did not, when it *146was entered upon, bave the specific purpose to “assault Sfielt or Sarge Kennedy.”
Certain tendencies of the evidence being such as to justify the jury in finding that the defendant was present and participated in the commission of the crime, acting in a common purpose to that end, together with John Pearce, John Fowler, and others, the incident testified to about the cartridges happening a few minutes before the killing could be considered in connection with and as shedding light on the defendant’s actual presence and conduct as a participator or aider or abettor in the crime jointly with these persons, as well as in connection with a prior conspiracy formed with Pearce, and the charge in question erroneously excludes the evidence mentioned from the consideration of the jury on that proposition, as well as being erroneous in limiting the prearrangement or conspiracy to doing the particular Avrongful act committed.
The charge is further faulty, and might well have been refused because of its failure to hypothesize that the defendant did not subsequently ratify the act of Pearce, or the other conspirators, by afterwards entering into the conspiracy. It is not questioned by appellant’s counsel that it is a correct rule of law that when one enters a conspiracy to do an unlaAvful act he becomes a party to every act which has been previously done by his co-conspirators in furtherance of the common design. The contention is that there is no evidence to support a finding showing a subsequent conspiracy between the parties. In this appellant is not borne out by the evidence set out in the bill of exceptions. There was evidence of this character, as may be seen from what we have heretofore said in discussing the evidence. “To show a conspiracy to do an unlawful act it is not indispensable that the evidence should show *147the existence of the conspiracy any definite time prior to the doing of the act. It may have arisen on the spur of the moment.
Nor is it necessary that the conspiracy or common purpose should he shown by positive evidence, hut its existence may be inferred from all the attendant circumstances accompanying the doing of the act, and from conduct of the defendant subsequent to the criminal act. — Tanner’s Case, 92 Ala. 1, 9 South. 613; William’s Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91. Gibson’s Case, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evan’s Case, 109 Ala. 13, 19 South. 535; Johnson’s Case, 29 Ala. 62, 65 Am. Dec. 383; Scott’s Case, 30 Ala. 503; Buford’s Case, 132 Ala. 6, 31 South. 714; Morris v. State, 146 Ala. 66, 92, 41 South. 274.
The application for rehearing is denied.