(dissenting). — It should be stated that defendant, with his brother, Clarence Teale, Thomas and Ed Young, went to the Zornes house together, although by reason of some unintentional circumstance defendant was the first one to enter the door. What their mission was, under this record, can only be surmised from their conduct. It is certain that within a short while after the men entered the house, a controversy arose as to who was the author of a report that a certain young woman had been acting as cook for Clarence Teale. Clarence Teale accused Mrs. Zornes of being the author of the story, and she denied it. Defendant participated in this verbal controversy, which became somewhat heated, and remarked that he was the only cook that had been *464there since he had been “down on the bottom.” Mrs. Zornes then remarked that she had no reference to him; “that she meant Jane Young.” Clarence Teale then said there had been considerable talk about Jane Young keeping house for them down there, and “I don’t know, but I think it started from this hill.” Mrs. Zornes then said it was a lie; that it did not start from there, but that Dick Prey had told it in their house. Clarence Teale then said that whoever stated it was a “cock-eyed liar.” Mrs. Zornes then said that he (Clarence) was a liar; that Dick Prey had told it, and she believed him, and after calling Clarence some vile names, she ordered her husband to put all of the men out of the house, telling him to get the gun. The majority opinion sets forth the testimony as to what was done inside of the house. With that affair, defendant, Hugh Teale, had no direct connection, but he, Levi and Henry Zornes went out of the house, and as the Zornes armed themselves with clubs at the woodpile, defendant warned his companions when they appeared at the door not to come out. The defendant’s conduct, after that time and in connection with the affray which caused the death of Mrs. Zornes, is shown by this summary of the testimony offered by the state, taken from the abstract and amended abstract now before us. It is a brief statement of the testimony as found in the majority opinion, and also includes some material testimony found in an amended abstract, which is not referred to by the majority. This statement was testified to by Levi Zornes, as to defendant’s part in the fight: “After I got out of the southwest door I saw Hugh Teale. We tried to pick up some rocks. Hugh had an arm load of wood and had his revolver, and said he would shoot our brains out if we picked up rocks. Hugh Teale was standing east and south of the door about eight feet. He had the wood in his left arm. Then we went off southwest. They were pushing us, and we didn’t have any time to get any wood at the woodpile. They drove us then north of the woodpile about fifty or sixty feet near the barn and corn crib. Q. After you had been *465driven there, did you see any one that was pursuing you? A. Yes, sir; saw Hugh Teale, Ed Young, Roy Young and Tom.”
Henry Zornes gave this version of the matter: ‘ ‘ Father and I went out of the house, then Tom, Ed and Roy Young was pursuing us. We went to get some rocks. Hugh Teale was there with a revolver and some stove wood. He said if we picked up the rocks he would shoot our brains out. He had it in his pocket when we first went out, and he pulled it in our faces. He didn’t throw any wood at us at this time. I went to the woodpile. Hugh gave Tom and Ed Young some wood. . . . My father went to the woodpile with me. We were pursued by Tom Young, Roy, Ed, and Hugh Teale.”
Thomas Phillips also testified to the following facts, in addition to those set out in the majority opinion: “Clarence Teale came right out of the house behind me. When I got out Hugh Teale was standing there with some wood in one arm; a revolver or something in his hand shined bright — I wouldn’t say whether it was a revolver or not. ’ ’
This was the case made for the state, omitting some 'other matters inferentially pointing to guilt, growing out of defendant’s conduct, after the assault was committed upon Mrs. Zornes, and the question is, Was it sufficient to take the case to the jury as against the defendant, Hugh Teale ? The jury had the right to believe it as against any testimony on the part of the defendant, and if it did believe it and gave it credence, it is for us to say whether or not such testimony was sufficient to justify the verdict. It is not our province, as I understand it, to weigh the whole testimony, even in eases where there is a sharp conflict, and say, upon the whole record, that were we triers of the fact, we would not have found the defendant guilty. Our province is to ascertain whether or not there was sufficient testimony introduced which, if believed by the jury, would justify a conviction. One reason for this is that questions of fact in all criminal cases are for a jury, and, after a verdict of guilty, found by *466twelve men, has been returned, and the trial judge has reviewed the testimony and confirmed the verdict, we are not, as an appellate tribunal, justified in reversing for want of testimony, because, forsooth, in reviewing the evidence as presented by the cold-printed page, we would not have come to the same conclusion. The usual test, as I understand it, is this: Suppose the defendant had rested without any testimony, and had chosen to submit his ease upon the evidence adduced by the state; the inquiry then, in the event of a verdict of guilty, would have been, Was there enough to justify the verdict? The same rule obtains where the defendant offers testimony in his defense; for it is within the province of the jury to say, “We do not believe any of the testimony offered by the defendant, or any material part of it.” Again, the trial court sits in review of the entire proceedings, and the presiding judge has opportunities which we do not and cannot possess, and he, under his oath, has a definite function to perform. In refusing to grant a motion for a new trial, he also puts his seal of approval upon the verdict, and his finding that the testimony is sufficient should not be' disregarded except in extreme eases. This to my mind is not such a ease.
The testimony shows much more than the mere presence of defendant as acquiescent observer. He could easily have retired to a safe distance, had he been so disposed. But he did not do so; he remained on the scene, drew his revolver, tried to prevent the Zornes from arming themselves with clubs, told the Zornes that if they picked up rocks he would blow their brains out and afterwards gave Tom and Ed Young some wood. Not only this, but when the Zornes started to retire, he, with Ed and Roy and Tom Young, pursued the Zornes, he (Hugh) being' at the time armed and carrying some wood in another arm. Of course he did not know that Mrs. Zornes was then being actually assaulted with intent to kill, but he was engaged and participated in the unlawful assault on the Zornes on their own premises, and, being en*467gaged in this general unlawful mélée, it is immaterial that he did not give direct countenance to everything that actually occurred. This proposition of law is too fundamental to require citation of authorities in its support. Mere presence at the place of difficulty is not aiding and abetting. But if one being present, encourage^ or incites, by words, gestures, looks, or signs, or in any manner, or by any means countenances or approves an assault or other crime, or is an active participant in a general riot or assault, he is an aider and abettor. Hilmes v. Stroebel, 59 Wis. 74 (17 N. W. 539); State v. Tally, 102 Ala. 25 (15 South. 722); Rhinehari v. Whitehead, 64 Wis. 42 (24 N. W. 401); State v. Jones, 115 Iowa, 113; Brown v. Perkins, 83 Mass. (1 Allen) 89; Kuney v. Dutcher, 56 Mich. 308 (22 N. W. 866); State v. Cox, 65 Mo. 29; State v. Walker, 98 Mo. 95 (9 S. W. 646, 11 S. W. 1133), In the latter case, it is said: “One theory of the case on the part of the state was that defendant did not himself shoot Green, but that one or more of seven named persons did, and that defendant was present, aidingand abetting. Wharton, in describing and defining an aider and abettor, says: ‘If he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting.’ I Wharton Criminal Law (8th Ed.) 211.”
There was ample testimony, as I view it, to take the case to the jury. Moreover, it was for the jury to say, under all the facts and circumstances disclosed by the record, what the purpose of the defendant and his companions was in going to the Zornes house. Yery shortly after they arrived there, Mrs. Zornes was accused of starting reports as against Clarence Teale. Hugh Teale, the defendant, was conveniently there as a witness to deny the correctness of the report. Out of this grew the difficulty. A jury may have found, in the *468absence of other testimony, that the parties all went to the Zornes home to settle this matter of gossip. Either that, or they went there to get liquor, or for some other doubtful motive. They went practically together, and in what followed the defendant, Hugh Teale, was not guiltless, if the witnesses for the state are to be believed. Whether or not they were worthy of credence was essentially for a jury, and I would not interfere with the verdict. I believe the judgment should be Affirmed.
Preston, J., concurs in this dissent.