At 2 o’clock in the morning of January 21,1917, Cornelius E. Cross, watchman of the Chicago, St. Paul, Minneapolis & Omaha Railway Company, was shot and killed when he was attempting to arrest three men whom he then dis-covered in the act of robbing a car which they had broken and entered. The defendant (plaintiff in error) was one of the three men. In his brief it is stated: “The theory of the defense, supported by evidence, was that defendant was present unwillingly; that he had no gun; that he was anxious to go home; and that he ran away as long as five minutes before Cross was shot.” It is uncertain who fired the fatal shot. The burglars had at least one gun, and defendant knew it. In defendant’s confession, admitted in evidence over his objection, he stated that he fired the shot; but, according to his testimony on the witness-stand, he was coerced to join in the burglary by one of his companions, and ran away before the homicide. It is argugd that if he was guilty at all it was. as acoconsplrajpr, and that whether the act of Lopez, who, defendant says, did fire the shot, was within their common purpose when the three went to the railroad yards, was a question for the jury, which, it is contended, the court, by refusing to give instruction No. 2 requested by defendant, excluded from the jury. Instruction No. 2 is as follows:
É“You are instructed that even if you find that the deidant Macario Peres Romero and the other parties named the information (naming them), on the occasion of the micide, entered upon the premises with the common purse of burglary, and the violence of the prisoner’s com*652panion was merely the result of the situation in which he found himself, and that he proceeded from the impulse of the moment without any concert, then the prisoner would be entitled to an acquittal and discharge.”.
It will be noted that the instruction requested hardly bears upon the defendant’s theory of the defense. It assumes a common purpose of burglary, and merely raises the question whether there must be concerted action in the shooting.
If one participating in a burglary would shoot and kill an enemy, whom he saw across the street, out of malice, and not in furtherance of the common design, then one would say his companions would not share the guilt of the killing; but if, on the other hand, the one killed was an officer attempting to arrest the lawbreakers, then one would say that his companions would share the responsibility and guilt of the killing, even though the killing had not been planned or expected by them. Both in morals and in law, if a man means one wrong and does another, he is punishable. This is true as to the individual, even though the killing may be unintentional or even accidental. Where one shares with others in the burglarious intent and act, and killing results from it as one of its,natural, ordinary and probable consequences, he will not be heard to say that he did not intend or share in it. In the instant case, the plaintiff by his own testimony knew that his companion had a gun. He was bound to know that his companion might use it in resistance of an officer who might attempt to arrest him. The attempt to arrest is an interference with their plans. It is common experience that persons engaged in committing a felony may kill those who interfere. Such appears to be the general, though possibly not the universal, holding of the courts. Conrad v. State, 75 Ohio St. 52; People v. Vasquez, 49 Cal. 560; Moody v. State, 6 Cold. (Tenn.) 299; McMahon v. People, 189 Ill. 222; State v. Nash & Redout, 7 Ia. 347; Miller v. State, 25 Wis. 384; Commonwealth v. Major, 198 Pa. St. 290.
The instruction requested is bad for another reason. It has the court assume that Cross, was killed as the result of *653the violence of the defendant’s companion. The jury might very well from the evidence have found that it was the defendant who did the killing.
The court’s instruction No. 13, the last sentence of which is complained of as prejudicial error, is as follows: “You are instructed that under the law of this state, in weighing the testimony of police officers and detectives, greater care should he used because of the natural and unavoidable tendency of such persons to procure and remember with partiality such testimony as would be against the defendant. This instruction is not intended to either impeach or discredit the testimony of police officers either severally or collectively, but only as a reasonable caution for you to have in mind.”
It is said: “Why should police officers be singled out and made the subject of an instruction.if not to cast some discredit upon their testimony?” While we hardly approve of the last sentence of the instruction, yet we are of opinion that the purpose of such instruction is not to either impeach or discredit any particular testimony. It is a cautionary instruction to the jury, advising them of the care they should use in considering the particular testimony. The fact that a witness is interested in the event of the lawsuit calls on us to exercise extra caution in considering his testimony, but can hardly be said to impeach or discredit it.
The judgment of the district court is
Affirmed.