BARTLETT, J., reads for affirmance.
All concur, except ANDREWS, Ch. J., GRAY and O'BRIEN, JJ., who dissent on the grounds: (1) That there was no sufficient evidence to justify the court in submitting to the jury the question whether, on the day of, or on any day preceding the homicide, the defendant and Lucius R. Wilson (who fired the shot which killed Harvey) had entered into a joint agreement, conspiracy or confederacy to resist, to the taking of human life if necessary, any attempt by any person to arrest or detain them, or hold them in custody, and (2) that the charge of the judge to the effect that if the jury found that such combination or agreement was made, and that the killing of Harvey by the shot fired by Lucius R. Wilson was in execution of such common design, the defendant, Charles F. Wilson, could be convicted of murder in the first degree, was erroneous, for the reason that the evidence furnished no sufficient basis for the charge.
Judgment affirmed.