
    Stephens v. The State.
    1. If several persons agree together to rob another, and for that purpose arm themselves with deadly weapons, and meet at the house of the person to be robbed, and to carry out their unlawful design one is left outside, ready to aid and assist, while the others enter and commit the crime agreed on, all are guilty of the robbery as principals.
    2. So, if those inside the house while attempting to consummate the robbery, and in furtherance of such conspiracy purposely kill the person they are attempting to rob, while he is resisting such attempt, and such killing is the natural and probable consequence of the common purpose, the person outside, who is aiding and assisting is equally guilty as the one striking the fatal blow, though he did not, previous to such attempt agree to or assent to such killing.
    ERROR t-o the Common Pleas of Jackson county.
    Luke Jones, William Jones and Laban Stephens were jointly indicted for the murder of Anderson Lackey, while attempting to rob him in his own house, on the night of April 28, 1883.
    Luke and William" Jones were first tried and cónvicted.
    On the separate trial of Stephens, evidence was offered tending to establish a conspiracy formed by the three defendants to go to Lackey’s house on the night in question to rob him of some money which they supposed he had in his possession ; that pursuant to this agreement they each armed himself with a pistol, Stephens borrowing one for that purpose ; that on their way to Lackey’s house they purchased cartridges to suit their pistols, loaded them, tried them by shooting at a post; that when near Lackey’s house at the suggestion of Stephens they also armed themselves with clubs; that when they reached the house, about 9 or 10 o’clock, they found a light burning, and by looking in, they found Lackey in bed, and his wife and daughter sitting up, and that thereupon two of defendants — Luke Jones being one — ’entered the house with their pistols in their hands, while the third remained outside to watch. Luke Jones approached Lackey and demanded his money or his life. On a refusal to give the money a scuffle ensued, in which Lackey was killed by a shot from the pistol of Luke Jones. It also appeared that almost at the moment of the fatal shot by Luke Jones, another was fired by the other defendant, who entered the room, but whether this was also fatal, is not material. In the meantime the third defendant, as the evidence tended to show, remained outside assisting in the common purpose.
    In this state of proof the defendant asked the following charge : “ That if you find from the evidence, that Anderson Lackey was unlawfully and maliciously assaulted and shot, and intentionally killed by Luke Jones, while attempting to perpetrate a robbery on the person of the deceased, and also find that Laban Stephens, the defendant, prior to such killing, entered into a conspiracy with Luke and William Jones to rob the deceased, Anderson Lackey, and not an agreement or conspiracy to unlawfully take his life, and also further find, that the defendant was not present at the time the shooting and killing was done, you cannot on such finding convict defendant of murder in the first degree.”
    This the court refused to charge, but on this point charged, “ That if Luke Jones, William Jones and Laban Stephens, entered into a conspiracy to commit a robbery on the person of Anderson Lackey, and that the evidence also shows, that the attempt to perpetrate such robbery, under all the circumstances, would naturally, reasonably, and probably involve the taking the life of Lackey, and then find from the evidence that in attempting to perpetrate such robbery, that one of the co-conspirators of defendant unlawfully and maliciously assaulted and shot Anderson Lackey, with the intent to take his life, and that by such assault and shooting gave him a mortal wound . . then the defendant is as equally guilty in law . . . as if done with his own hand, whether he was present wlien'the assault and shooting were done or not.”
    Under this charge, there was a verdict of murder in the first degree, and sentence, which it is now sought to reverse.
    
      Tripp & Jones, and O. A. Ailcinson, for the motion.
    
      James Lawrence, attorney-general, contra,
    in support of the charge of the court, cited Stipp v. State, 11 Ind. 62 ; People v. Pool, 27 Cal. 572 ; U. S. v. Poss, 1 Gallis. 624; State v. Shel-lecly, 8 Iowa, 477; People v. Vasquez, 49 Cal. 560 ; State v. Pash, 7 Iowa, 347; 2 Wharton’s Cr. L. (7th Ed.) 998 ; 1 Bishop’s Cr. L. .(6th Ed.) 636.
   JOHNSON, C. J.

The request which was refused when applied to the case on trial was in substance, that if Luke and William Jones, and Laban Stephens agreed to rob Lackey, and for that purpose armed themselves with deadly weapons, and went to his house after night, and, in furtherance of the plan, the Jones boys went in-to commit the robbery, while Stephens remained outside to aid and assist, and that while the two were inside engaged in attempting to commit the robbery, one of them intentionally killed Lackey, Stephens could not be held responsible for this killing, unless he had also previously agreed that Lackey’s life should be taken in the attempt to rob.

The charge as given was in substance, that though Stephens remained outside, yet if he had agreed with the Jones boys to commit the robbery, and was then assisting to commit the robbery, he was responsible for the intentional killing by Luke Jones, though he was outside the house, and although he had not previously agreed to the killing, if it was the natural and probable consequence of tbe conspiracy to rob, and was in furtherance of the conspiracy. ,

Revised Statutes, § 6808, provides that whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or perpetrating, or attempting to perpetrate, any rape, arson, robbery or burglary kills another, is guilty of murder in the first degree.”

By section 6804. “ Whoever aids abets or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.”

If Luke and William Jones had been indicted with Stephens for the robbery or attempted robbery of Lackey, the acts of the former in the commission of the robbery would be the acts of Stephens also, though he did not previously assent to the particular means employed to commit this crime, if he was engaged in the part assigned him in the robbery.

In the case at bar, the intentional killing by Luke Jones, while attempting to perpetrate a robbery, made him guilty of murder in the first degree, though he had not previously planned the killing but only the robbery. Premeditation in such a case is not essential.

The request refused, makes premeditation, or the assent to a previous agreement to kill, necessary to make Stephens liable for the killing by Luke Jones, while he was outside performing his assigned part in the crime of robbery.

If several are associated together to commit a robbery, and one of them, while all are engaged in the common design, intentionally kills the person they are attempting to rob, in furthercmce of the common purpose, all are- equally guilty, though the others had not previously consented to the killing, where such killing was done in the execution of the common purpose, and was a natural and probable result of the attempt to rob. People v. Vasques, 49 Cal. 560; State v. Shelledy, 8 Iowa, 477; United States v. Ross, 1 Gallison, 624; People v. Pool, 27 Cal. 572; State v. Nash, 7 Iowa, 347; Stipp v. State, 11 Ind. 62; 1 Bishop Crim. Law (7th Ed.) § 636; 2 Whart. Crim. Law (7th Ed.) § 998. This is in effect the charge given by the court.

There wtrs an agreement among them to arm themselves and enter the house of Lackey to rob him. In furtherance of this plan, Stephens remained outside to watch and assist. While his confederates were perpetrating the robbery, or attempting to do so, one of them, Luke Jones, killed Lackey. It was left to the jury to say whether his act was the act of his associates as well as his own. If they found that such killing was in furtherance of the common plan, and was a natural and probable consequence of the attempt to rob, then his associates were responsible, though they had not previously agreed to the killing, and were not actually present, in the house, at the time.

In other words, each is presumed to have intended to authorize the other to kill, if, in perpetrating the robbery, it became a necessary means to its consummation.

Judgment affirmed.  