
    Fuller et al. v. The State.
    Submitted January 21,
    Decided January 24, 1901.
    Indictment for murder. Before Judge Harris. Meriwether superior court. December 4, 1900.
    
      H. W. Hill, W. S. Howell, and N. F. Culpepper, for plaintiffs in error. J. M. Terrell, attorney-general, and T. A. Atkinson, solicitor-general, contra.
   Lewis, J.

While there was ample evidence to sustain the conviction of one of the plaintiffs in error, the evidence as a whole was not sufficient to show beyond a reasonable doubt that the other plaintiff in error in any manner participated in the homicide. Though there was some testimony tending to prove that before its commission the two had conspired to do the killing, and that the one last referred to had made threats to kill the deceased, it does not appear that at the time of the homicide this one said or did anything in furtherance of any criminal design, or that he aided and abetted the act of killing. Indeed, his entire conductwas, under the evidence, perfectly consistent with the theory that even if he had previously entertained a purpose to murder, he had abandoned the same.

Judgment as to one of the plaintiffs in error affirmed, and as to the other reversed.

All the Justices concurring.  