
    Stipp v. The State.
    Indictment for murder, with a count for manslaughter. The defendant asked the Court to instruct the jury that if they found from the evidence that the person inflicting the mortal wound upon the deceased, was guilty of manslaughter only, and did not find that the defendant inflicted the mortal wound, and it was not proved beyond a reasonable doubt that he was present, aiding and assisting such person in giving the fatal blow, the defendant could not be convicted; for, in law, there could not be an accessory before the fact in a case of manslaughter.
    
      Held, that the instruction was calculated to mislead the jury in this, that it seemed to confine the aiding, &c., to the act of inflicting the fatal blow.
    
      Qucere, whether there can bo an accessory before the fact, in a case of manslaughter.
    If several persons be engaged in a common illegal undertaking, and one of them commit a homicide, the others may be guilty, even as principals, of whatever grade of crime it may turn out to be, without having actually assisted in inflicting the fatal blow.
    
      Monday, November 22.
    APPEAL from the Parke Circuit Court.
   Perkins, J.

Indictment against Stipp for the murder of Willis Hart, with a count for manslaughter. Trial, conviction of manslaughter, and sentence to ten years’ hard labor in the penitentiary.

It appears that on the night of the commission of the homicide, Joseph Russell, Willis Hart, and his son, (a young lad,) Abraham Stipp, one Spore, Hiram Phipps, and others, were at Miller's grocery, in the town of Montezuma, Parke county, Indicma; that a game of cards was played, at the close of which Russell treated the company — twenty in number — and in paying at the bar, exhibited some twenty-five dollars in gold; that, from some appearances, Hiram Phipps was led to whisper to Russell that they were in a foul crowd, and had better leave, whereupon Russell, Hart and his son, and said Phipps withdrew, and started to go to the Montezuma House. Spore and Stipp followed, overtook them, and Spore insisted that Russell should go back and play again. He declined. Spore said he was no gentleman, &e. Spore and Stipp returned to the grocery, collected a crowd and came back to the vicinity of the tavern. Spore again insisted that Russell should go back and play. He refused. Spore abused and struck him. Stipp was then standing near Hart, and simultaneously with the attack by Spore upon Russell, witness, Phipps, was attacked by one of the crowd, and Hart was stabbed by another, and killed.

Stipp had insisted at the grocery, that witness, Phipps, should play with him, but he had declined. The assault was made about ten o’clock at night. There was no direct testimony that defendant, Stipp, was the individual who stabbed Hart, and the latter expressed the opinion, before he died, that Stipp was not the person.

We have stated sufficient of the facts for the purposes of this case.

The defendant asked the Court to instruct the jury that if they found from the evidence “ that the person inflicting the mortal wound upon Hart was guilty of manslaughter only, and did not find that the defendant Stipp inflicted such mortal wound, and it was not proved beyond a reasonable doubt that he was present aiding and assisting such person in giving the fatal blow, then Stipp could not be convicted; for, in law, there could not be accessories before the fact in cases of manslaughter.”

The Court refused this instruction.

In doing so, it is insisted the Court committed an error

Perhaps it may be true, that in manslaughter, as in misdemeanors, all who are guilty at all are principals, and that there can be no accessories; though the case of Regina v. Gaylord, 40 Eng. L. and Eq. 556, favors the idea that there may be such before the fact; still, we think the Court did not err in refusing the instruction. It was calculated to mislead the jury in this, that it seemed to confine the aiding, &c., necessary to constitute a principal in the offense, to the act of inflicting the fatal blow, when it -was not necessary to the guilt of the defendant that it should be so limited.

We take it that if the defendant, Stipp, was engaged with the person who gave the blow which caused Hart’s death, in a common illegal undertaking, he may have been guilty, as a principal, even, of the homicide committed, of whatever grade of crime it turned out to be, without having actually assisted in inflicting the blow. If he was watching at a proper distance, to prevent surprise, or to intercept aid to the attacked, or to assist the one who actually committed the homicide in making his escape, &c., he may have been guilty as a principal. See 2 Wat. Archb. p. 249, et seq.

J. P. Usher, for the appellant.

T. N. Rice, for the state.

Per Curiam. — The judgment is affirmed with costs.  