
    Berryhill v. The State.
    No. 2335.
    April 14, 1921.
    Indictment for murder. Before Judge Humphries. Fulton superior court. October 30, 1920.
    
      Claude D. Rowe and Q. H. Cornwell, for plaintiff in error.
    
      R. A. Denny, attorney-general, John A. Boylcin, solicitor-general, Graham Wright, and R. A. Stephens, contra.
   Atkinson, J.

1. Where two or more persons conspire to rob another who is employed in a building, and one of the conspirators keeps wateh or guard at a convenient distance while the others enter the building and, in furtherance of the common design to rob, kill the person intended to be robbed, sueh killing is a probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one on guard. Penal Code (1910), § 42; 1 Wharton’s Criminal Law (11th ed.), § 258; Wharton on Homicide (3d ed.l, 660, § 430; Clark’s Criminal Law (2d ed.), 106, § 47; Brennan v. People. 15 Ill. 511; Stephens v. State, 42 Ohio St. 150; Miller v. State, 25 Wis. 384; State v. Barrett, 40 Minn. 77 (41 N. W. 463); Weston v. Commonwealth, 111 Pa. 251 (2 Atl. 191). In this case there was sufficient evidence to authorize a charge to the jury applying the foregoing legal principle.

2. The verdict finding the defendant guilty of murder was authorized by the evidence, and the judge did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur.  