delivered the opinion of the Court:
This was an indictment found in the Superior Court of Chicago against the plaintiff in error, and two others, for murder. A separate trial was allowed the plaintiff in error, and a change of venue awarded on his application, to Lake county, where a trial was had resulting in a verdict of guilty.
A motion was made to set aside the verdict and grant a new trial on the grounds, that the court had misdirected the jury, and that the verdict was against the evidence and law of the case.
The motion was overruled and exceptions taken, and the cause brought here by writ of error on a bill of exceptions. The errrors assigned are in giving the third, fourth and fifth instructions on behalf of the people, in refusing to give defendant’s third and seventh instructions, and in modifying the same, and in refusing defendant’s ninth instruction, and in overruling the motion for a new trial.
The prisoner’s counsel has confined himself chiefly to the consideration of these instructions.
A series of instructions was given for the prosecution, and are as follows:
1. The court instructs the jury, that “ murder is the unlawful killing of a human being in the peace of the people, with malice aforethought, either express or implied.”
2. And the court further instructs the jury, that malice aforethought shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
3. The court further instructs the jury, that if they believe from the evidence beyond a reasonable doubt that Patrick Maloney was unlawfully killed with malice aforethought, in manner and form as charged in the indictment, and this defendant, John Kennedy, was present, and in any way or manner aided, abetted or assisted in such killing, then the jury should find him guilty, although the jury may believe from the evidence that some other person actually fired the shot that killed said Maloney, and although no motive for killing said Maloney has been proved.
4. The court further instructs the jury, that a reasonable doubt means in law a serious, substantial and well-founded doubt, and not the mere possibility of a doubt.
5. The court further instructs the jury, that if the evidence convinces you beyond a reasonable doubt that Patrick Maloney was killed in manner and form as charged in the indictment, and that this defendant, John Kennedy, was present, and in any way or manner aided, abetted or assisted in such killing, then the jury should find him guilty, although there was no eye-witness to the fact of such killing.
6. The court instructs the jury, that voluntary drunkenness is no excuse for crime.
This court has often held where a series of instructions embrace the law of the case when taken and considered together, though one of them may be erroneous, still, for such error a judgment will not be reversed, provided it shall appear from the whole record that substantial justice has been done, and no prejudice has resulted by reason of such erroneous instruction, and that the law of the case has been fully given to the jury. Howard Fire & Mar. Ins. Co. v. Cormick, 24 Ill. 455; Warren v. Dickson, 27 id. 115; Springdale Cemetery Association v. Smith, 24 id. 480.
The counsel for the plaintiff in error insists, that the third and fifth of these instructions are erroneous, for by them the jury were directed, that if they found from the evidence, that Maloney was unlawfully killed in the manner alleged in the indictment,, and that the prisoner was present, and in any way or manner aided, abetted or assisted in such unlawful killing, then they should find him guilty of murder, although the jury believe, from the evidence, that some other person fired the fatal shot, and although no motive is proved, and there was no eyewitness of the deed.
It is argued, that, upon this supposed state of facts, the person who actually committed the homicide would be guilty of no higher offense than manslaughter, because no malice aforethought is assumed or supposed to have been proved; or is required to be found by the jury, and without malice aforethought, unlawful killing is manslaughter only, and if the prisoner was present, aiding- and assisting, he could not be guilty of any higher crime.
We do not think either of these instructions is open to the objections made.
The indictment charges the homicide to have been committed unlawfully, feloniously, willfully, and with malice aforethought, and our Code provides, that malice shall be implied when no considerable provocation appears, or when the circumstances of the killing show an abandoned and malignant heart.
In both the third and fifth instructions the jury are told, that the killing must have been with malice aforethought, in manner and form as charged in the indictment—in the third instruction in express terms, and the fifth tells the jury, in substance, that they must be convinced beyond a reasonable doubt, that deceased was killed in manner and form as charged in the indictment, that is, that he was killed unlawfully, feloniously, willfully, and with malice aforethought. As we understand these instructions, and as the jury must have understood them, they were told the prisoners must not be convicted unless the homicide was done with malice aforethought.
The killing being established, in manner and form as charged in the indictment, it requires, on the evidence in this record, no argument or other authority than a bare reference to the statute, section thirteen of the criminal Code, to fasten guilt upon the prisoner. The proof is positive, that he was present when the deed was done, and that he had a guilty knowledge of the design in visiting the house of the deceased sufficiently appears from all the circumstances. The prisoner seems to have been, not a sleeping partner, but an active participant. He engaged the guide to the house, and introduced him to his guilty associates, and was “ act and part ” in the whole murderous affair from its inception to its fatal termination. It is impossible, in the nature of things, he should not have known the design and object of the visit, of a cold night in ¡November, armed with a revolver, to the shanty of deceased..
The deed, perpetrated in the manner it was perpetrated,, sufficiently establishes malice, and all the facts show a guilty knowledge and participancy of the prisoner.
On his behalf, the court told the jury, that the mere presence of the prisoner at the homicide, was not sufficient to convict him unless it was proved to their satisfaction that he knew before the killing that such was the purpose of those who actually did the deed — that they must be satisfied he was not only present, but aware of the purpose. The objection of his counsel, therefore, that the prisoner had not the full benefit of his defense, seems not to be sustained. His mere physical pres* ence was not deemed sufficient to establish his guilt, but it was held to be necessary to show previous knowledge of the intention to commit the murder.
We are at a loss to perceive wherein' the prisoner has been prejudiced, improperly, by these several instructions of the court.
But it is further insisted, the seventh instruction as asked by the prisoner, was proper, and should have been given without any modification.
That instruction was as follows: “ Though the jury shall believe from the evidence, that the murder was committed at the time and place mentioned in the indictment, still, if they are not satisfied, from the evidence, that the prisoner was previously aware of the purpose to commit such murder, or participated therein, then they should not find the prisoner guilty, though they further believe from the evidence that he subsequently failed to disclose or actually concealed such murder.”
The modification by the court consisted in inserting, after the words “participated therein,” the words “or aided, or abetted or assisted in the perpetration thereof,” before the words “ then they should not find,” etc.
We perceive no impropriety in this modification, but the contrary; as, by the insertion of those words, the offense charged was brought within the terms and language of the Criminal Code. The language of the Code is, “ aids, abets or assists,” and it cannot be charged as improper, in an instruction to the jury, that the language of the Code was used by the court instead of a phrase or word, that may, perhaps, have the same meaning.
The jury, by the instructions on both sides, were clearly told, that the prisoner ought not to be convicted unless it should be proved to them beyond a reasonable doubt, that he .was aware of the intention to commit the murder, and that he participated in such intention, and that the concealment of a murder was not equivalent in law to the commission of that crime.
The third instruction asked by the prisoner, which the court also modified, was as follows:
“ If the jury should find, from the evidence, that the deceased was killed at the time and in the manner mentioned in the indictment, and that the shot which caused his death was fired by either Corbett, Fleming or the defendant, but are unable, from the evidence, to ascertain by which of said persons said shot was fired, then the jury ought to acquit the defendant of firing such shot, and consider and decide the case precisely as if it had been proved that such shot was fired by Corbett or Fleming.”
The court modified this instruction by striking out the words “ acquit said defendant of firing such shot.” The instruction was ingeniously drawn, and might have led the jury to believe, if the prisoner was not guilty of actually firing the fatal shot, he was not guilty of murder. The modification by the court left the case on the true and legal ground, and relieved the jury from all embarrassment, such as they might have experienced had the words remained which the court expunged. We see nothing objectionable in the modification. The jury were told they should consider and decide the case precisely as if it had been proved such shot was fired by either one of the other parties indicted.
It is also objected by the prisoner’s counsel, that the State’s attorney, in his closing address to the jury, stated to them his own belief of the prisoner’s guilt, and informed them that Corbett and Fleming had been convicted and sentenced for the murder, and that the prisoner was as guilty as either of them, and that his acquittal would be an impeachment of the jury that tried them.
Whatever may be said of these remarks by the State’s attorney, it further appears in the record, that he did, in another part of his closing speech, tell the jury that they ought to acquit the prisoner, unless they believed, from the evidence, beyond a reasonable doubt, that his guilt was established, and the court further told them, by the eighth instruction asked by the prisoner, that they should disregard any assertion of counsel of the existence of any fact bearing upon the question of the guilt of the prisoner, which has not been proved before them, and which is not fairly inferable from the facts proved; nor should the jury regard any expression of opinion by the prosecuting attorney as to the guilt of the prisoner, but the jury will determine the question of his guilt or innocence solely from the evidence in the case, and the law, as given by the court.
This instruction certainly had the effect to destroy the force of the remarks made by the State’s attorney and remitted the jury to their duty, to be governed solely by the evidence in the cause and the law of the case.
The last paragraph of this instruction after the word “ prisoner,” was inserted by the court, to which modification the record does not show the defendant took any exception. This being so, no error can be assigned on it. Sedgwick v. Philips, 22 Ill. 184.
It is also objected that the court refused to give the ninth instruction for the prisoner. It is as follows:
“ The jury should not regard the statements of the prosecuting attorney, that Fleming and Corbett have been convicted of the offense for which the prisoner is now on trial; and this statement should have no weight whatever in the case.”
This instruction is substantially the same as the eighth after it was modified, and which was given as modified. In the case of May v. Tallman, 20 Ill. 443, this court said,' when two instructions are asked for, both of which contain the same principle of law, the court may give the one and refuse the other, and may refuse to repeat a principle of law which has previously been fairly stated to the jury.
Upon the motion for a new trial, we are of opinion that the evidence fully sustains the verdict, and makes out a clear case against the prisoner. Had his presence at thé scene of the murder been innocent, he would not have denied all knowledge of it, but would have used the proper means to bring the guilty to punishment. The facts are plain and striking, and show his active participation in the affair, from the time he introduced the guide to Corbett «and Fleming, and accompanied them on the murderous expedition. We see nothing in the evidence to raise a doubt of the prisoner’s guilt, and see no error in any of the rulings of the court, and must, therefore, affirm the judgment.
Judgment affirmed.