PRINE v. STATE

O.C. Luper, of Prentiss, and T.B. Davis, of Columbia, for appellant. The court erred in granting the state the third instruction. This instruction is misleading. If the instruction means to say that if one of the parties did the act and the other was present and aided, abetted or assisted in the killing or encouraged the said killing in any manner then you should find the defendant, Joe Prine, guilty of murder, then clearly it is erroneous. The aiding, abetting, assisting, or encouragement must be with malice of forethought and must be willful and with an intent to kill and murder. Hicks v. United States, 37 L.Ed. 1137. Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee. It was argued in the oral argument that there was not shown to be any common understanding between T.M. Prine and Joe Prine. It is true that none of the witnesses could show when T.M. Prine came upon the scene or whether there was any understanding between Joe Prine and T.M. Prine prior to the killing to meet at the scene of the killing for the purpose of settling the score between the appellant and Evans, the deceased, but there are significant facts from which the jury can deduce such facts and the rule is that the jury may draw any reasonable conclusion from the evidence that may reasonably be entertained. It must be remembered that in dealing with a situation like this the state cannot prove directly the facts, but must rely upon circumstances and deductions drawn from the proven facts. The case is not one depending on circumstantial evidence. The evidence shows that Sam Prine and Joe Prine were together prior to Evans' arrival and that Joe Prine stated to Sam Prine, his brother, that if he did not want to be mixed up in a killing he had better get away, that he was going to kill Evans; that upon this suggestion, Sam Prine left the scene and that his father lived not over a quarter of a mile away; that presently his father appeared upon the scene armed with a deadly weapon and at a time when his son was attempting to kill Evans and would have killed him had his pistol fired. T.M. Prine, the father of appellant, fired the fatal shot. The law assumes that when two parties are acting together, each trying to do the same thing, each trying to reach the same end, both having the same purpose, there is some understanding between them in the matter. The jury had a right to believe that a common purpose existed. The courts have recognized the doctrine of joint participants in killings or other crimes being each guilty because of the joint participation in the act of the other. Jones v. State, 189 Miss. 533, 198 So. 855; Borum et al. v. United States, 56 F.2d 301; 14 Am. Jur. 826, Sec. 87. Argued orally by T.B. Davis, for appellant, and by Geo. H. Ethridge, for appellee.