Defendant- Arnol Stultz, and Andrew Carver, were indicted for the murder of Winfield Scott Painter, and at the October term, 1873, of the McDonald circuit court, defendant was tried and convicted of murder in the second degree, and his punishment assessed at ten years imprisonment in the penitentiary. The indictment contained two counts. The first count charged that Arnol Stultz shot and killed the deceased,/and that defendant and Andrew Caiwer were present, aiding and assisting. The second charged that Testerman killed the deceased by cutting him with a knife, and that Stultz and Carver were present, aiding and assisting. The defendant moved the court to compel the State to elect on which of said counts she would try the defendant. The court overruled the motion, and this is complained of as error.
*413 1. indictment: election between counts.
In the State v. Porter, 26 Mo. 202, Napton, J., delivering the opinion of the court, said : “ If the several counts refer to different transactions, in point of . . . , fact, it is matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where the offenses are distinct and of a different nature, and calculated .to confound the defense.” Again, “It is usual to frame several counts, where only a single offense is intended to be charged, for the purpose of meeting the evidence as it may transpire at the trial; and in such eases the court will not compel the prosecutor to elect.” Here, in both counts, Testerman was indicted for murder in the first degree. He who kills, and he who is present, aiding and abetting, are equally guilty and' punished alike; and if the latter is indicted as the actual perpetrator, the indictment is good, and is supported by proof that he was present, aiding and abetting. State v. Davis, 29 Mo. 396; State v. Philips, 24 Mo. 475; Chitty’s Crim. Law, 256. It was no error, therefore, to refuse to require the prosecutor to elect.
2. -.
The second count of the indictment is defective in failing to state when and where the deceased died. It alleged that of the wounds inflicted upon him, the deceased “ languished and languishing did immediately die.” This has been repeatedly held an insufficient allegation as to the time and place of the death of the deceased. Lester v. State, 9 Mo. 658; State v. Sides, 64 Mo. 383; State v. Lakey 65 Mo. 217; State v. Mayfield, 66 Mo. 125.
3. indictment i n SEVERAL COUNTS: verdict.
The verdict did not specify under which count defendant was found guilty, and it-, is contended by apjiellant’s counsel that, therefore, it cannot stand; but . ' -pi - t it has so often been held that it the indictment contain one good count which will support thé verdict, it will not be disturbed, that it is unnecessary to dwell upon that point.
*414 4-: evidence
*413The defendant, at the trial, objected t® the introduc*414tion of any evidence in relation to the time and place of the death of the deceased, because not sufficiently alleged in the second count, but as this evidence was admissible under the first count, the objection was not well taken. As under the decisions in the State v. Davis and State v. Philips, before cited, the evidence admitted on the trial would have supported either count, the objection to its introduction because one count was bad, is untenable.
5._. witness, t™nw°henXaS¿Sdl antis witness
The defendant complains that on the cross-examination of defendant, who was introduced as a witness in his own behalf, and testified in chief that Sam. Smith did not run away during the fight, the court compelled the defendant to answer the following question: “ Did you not tell Dr. A. W. Chenowith, one night when you went there with a double-barreled shot gu'n, that Sam. Smith was frightened worse than you ever saw a man before, and at the commencement of the fight ran away eighty or a hundred yards?” To which he answered, “ I did.” Sam. Smith was a witness for defendant. The prosecuting attorney, in his opening argument to the jury, assumed that Smith was not present during the difficulty, and to support that assumption, was permitted by the court, defendant objecting, to comment on the question propounded to the defendant, and his answer. The action of the court was proper. Defendant, when he places himself on the stand as a witness, occupies the position of any other witness, and subjects himself to just as searching a cross-examination. State v. Clinton, 67 Mo. 380. And the prosecuting attorney had the same right to comment upon his testimony as he had to remark upon that of any- other witness in the cause.
6--: evidence.
The court, against defendant’s objection, admitted evidence of a previous difficulty between the Painters and Carver and Stultz, which occurred about 10 o’clock on the morning of the same day that Winfield S. Painter was killed. After that difficulty the parties separated, the Painters leaving the place where the fight oc*415curred to go to a bathing place on the creek, and after bathing, they started homeward through a cornfield. When they had proceeded a short distance, they saw defendant and Carver and Stultz meeting them. It seems from the evidence that defendant had- heard the noise of the first difficulty, but was uot present. He was on the other side of the creek, but crossed over to where Stultz and Carver were. Carver carried with him, into the cornfield, two stones in his hands. Although not present at the first difficulty, there was evidence tending to show that defendant was aware that there had been a difficulty, and had espoused the quarrel of Stultz and Carver. The evidence of the former difficulty was, therefore, admissible.
7.-: resgestae
It is further objected that, the court admitted evidence that during the progress of the fight in the cornfield, the defendant cut George Allen Painter with his knife. It was one fight, in which, from the evidence, all the parties present were participants, and the evidence objected to was a part of the res gestae.
8.-: murder in tlie second degree
The third instruction, it is- insisted, is' erroneous. It declares that: “If the jury find that Stultz and Carver, or either of them, willfully killed Painter by . . * shooting mm with a pistol or cutting with a knife, and that defendant was willfully present, aiding, abetting, assisting or encouraging the same, or if they find that defendant, with his own hands, willfully cut' and stabbed Painter, and thereby killed him, but that said killing was not done with deliberation and premeditation, such killing would be murder in the second degree.” The objection urged to this instruction is, that it ignores the law of excusable or justifiable homicide, and the necessity of proving malice to constitute the crime of murder. There is some plausibility and force in this objection, but this instruction was given as a qualification to others given in regard to murder in the first degree, in which the court declared that to constitute the killing murder of that degree, it devolved upon the State to show that it was done *416with premeditation and deliberation; and that the law presumed malice where there was an intentional killing, in the absence of extenuating circumstances. Without malice, it is true, there can be no murder in either degree, but it has been very often held by this court, that the law presumes malice from an intentional killing in the absence of evidence excusing, j ustifying or mitigating the offense. If an intentional killing is shown, but circumstances of malice and premeditation are not proved, the law presumes the killing to be murder in the second degree; State v. Underwood, 57 Mo. 49; State v. Holme, 54 Mo. 53. The judgment of the circuit court is affirmed.
All concurring.Affirmed.