(¡after stating ¡the facts). (1) It is contended, first, that the court erred in refusing the continuance. A -continuance w-as granted, however, upon the first request therefor, from the special to the regular term of court -and the cause set down for trial the first day and the record does not disclose the exercise of -sufficient diligence by the appellant in procuring the attendance of the absent witnesses for the trial upon the day set, to warrant the court in continuing the cause further, because of their absence, and there was no abuse of discretion in the court’s denial of the motion.
We do not think the court committed error in admitting in evidence the proof of .the .statement of the witnesses of what Collin Turner, who fired the fatal shot, said to him in the absence of 'appellant on the morning of the killing about not liking the way Walter had been treated the night before and that he was not going to stand for it.
(2) There was sufficient testimony to show in his statements of like kind' to others in the presence of Walter and their being almost continually together on the morning of the killing, a concert of action between them and an unlawful common design upon their part to whip all those who had engaged in the difficulty with Walter on the night before.
In Cantrell v. State, 117 Ark. 233, the court said: “The rule in such oases is well defined and has been announced in a number of the decisions of this court. The proof of such conspiracy is another of those preliminary questions to be passed upon iby the court, and where evidence is offered which is sufficient to make a prima facie showing of the existence of such conspiracy, then all the acts and declarations of each conspirator during the progress of the conspiracy are admissible against his co-conspirator. It is not often that these conspiracies can be shown by express agreement. Their existence is more often shown by the proof of 'circumstances, the concurrence of which leads one to believe that the parties are acting from a common unlawful motive. ’ ’
(3) The appellant could be charged, as he was, as a principal in the commission of 'the crime, being present, aiding and abetting, or ¡ready and consenting to aid and abet by 'alleging that he killed the deceased, Joe Hunter, (by shooting him with a pistol, when the shooting in fact was done by Collin Turner. Hunter v. State, 104 Ark. 245.
There is no direct testimony that appellant had any knowledge that his brother, Collin Turner, would shoot and kill the deceased, Joe Hunter, but the testimony unmistakably shows that he was engaged in executing his threat to whip all those who had assaulted him :fhe night before. That ¡bis brother, Collin, who had declared he did not like the way he had been treated and would not stand for it, was present when he thrashed the town marshal, immediately before the shooting, advised him against, and prevented him from attacking the deputy sheriff, after finishing the marshal, while the deputy was warning, him not to do so, with his pistol presented for shooting at the time. He also knew that Collin had the pistol of the marshal 'and the testimony shows he was so close to Walter when he was shot by deceased as he advanced to attack ihim, that he shot deceased as he claims, while he was still standing with his pistol presented against Walter.
Having pursued the unlawful common design together, and the killing having resulted in its execution, whether it was contemplated or intended by Walter Turner or not, he was guilty with Collin Turner, who fired the shot, the jury having found necessarily that it was not justifiable. The majority is of the opinion that no error was committed in the giving and refusing of instructions and that there is no prejudicial error in the record. The judgment is accordingly affirmed.