
    Walker v. The State.
    Argued March 16, —
    Decided April 6, 1903.
    Indictment for murder. Before Judge Spence. Thomas superior court. January 23, 1903.
    Groley Tyus and John Walker were indicted for the murder of Alex. Godwin, and were found guilty, with a recommendation to mercy as to Walker. His motion for a new trial was overruled, and he excepted. It appears that on the 14th of September, 1902, Tyus and Walker were seen together in the town of Cairo, “ knocking about like people generally do in town,” before noon, and again in the afternoon they were seen standing together and talking. A witness heard Walker tell Tyus to go his route; he would not be arrested while he was in town. Another saw them talking while. Tyus loaded a pistol, and heard Tyus say, “ God damn old man Howze; he can’t arrest me.” After dark one Maxwell had some words with Tyus, and during this conversation Walker passed them, but did not “take up.” Tyus drew a weapon on Maxwell, and Walker came “ mighty quick.” Directly after Maxwell got rid of Tyus, Walker passed by and said, “Go your route; if you get in jail, I will pay you out.” Tyus was then walking off; he could have heard what Walker said. They were either cousins or brothers-in-law. Later in the evening Howze, the night watchman of the town, attempted to arrest Tyus for shooting his pistol in the street, and, while so doing, was shot and wounded by Tyus, who also shot and killed Jeff. Godwin, who by request of Howze was assisting in making the arrest. While this transpired Walker was a block away and out sight of the participants in this shooting, standing by his horse and talking with two other persons, one of whom told him, “ You had better get in that buggy and go on home; if you don’t, you will be arrested.” He replied, “ Arrest the devil; there aint a man in Cairo can arrest me.” About that time pistol shots were heard, and Walker said, “ God damn it, that’s Goley Tyus; and there’s one more good man in town.” He drove immediately in the direction of the shooting. He met Howze and ask him what was the trouble, and if he knew who it was. During the same night Alex. Godwin, who was the day marshal of the town, went in search of Tyus, accompanied by one Taylor. They drove about six miles from Cairo, where, about two o’clock in the morning, they met a buggy with Tyus and Walker in it, going from the direction of Walker’s house, which was on a different road. There was bright moonlight. God-win was walking behind the buggy driven by Taylor. He wore a marshal’s badge about two and a half inches wide. He hailed the occupants of the other buggy, “ threw his gun ” on Tyus, and said, “Crawl out of there.” Tyus said “Who, me?” Godwin said, “ Yes, you.” Tyus stepped from the buggy, but before he reached the ground he fired his pistol, and the shot killed Godwin. Tyus ran off through the woods. Walker drove down the road seventy-five or a hundred yards, where he made a short halt, and then drove on. After daylight of the same morning, Taylor found a track toward where he last saw Tyus. The track came in the road not far from where Walker stopped. He could not swear that Tyus knew of Godwin’s being marshal; but Walker was obliged to have known it. Tyus went to Cairo often. The Godwin family raised him. Between midnight and daylight, Walker stopped his buggy at the house of one Williams, called him out, and asked to be allowed to leave his gun and other things there, saying he did not want them to see him with anything; for if they did, they would be claiming something against him about the shooting. Williams refused. Walker put the gun back in the buggy and drove away. Between three and four o’clock of the same morning Walker was arrested just below his house. In his buggy were found grain, fodder, bed-quilts, a bucket, and a shotgun. He had seven or eight shells in his coat-pocket. He made some contradictory statements to the persons arresting him as to his knowledge of what had taken place.
   Fish, J.

The accused, in the trial under review, being jointly indicted with another person for the offense of murder, the evidence showing that such other party alone did the act which resulted in the death of the person alleged to have been murdered, and that the accused, although with the slayer at the time of the homicide, did nothing, by word or deed, to assist in or encourage its commission, and not supporting the theory of the State that the killing-was in pursuance, and the result, of a conspiracy between the accused and the actual perpetrator of the offense, the verdict finding the accused guilty was contrary to evidence; and for this reason, if for no other, the court erred in not granting a new trial. Judgment reversed.

By five Justices.

Hammond & Hammond, for plaintiff in error.

John G. Hart, attorney-general, W. E. Thomas, solicitor-general, and Boscoe Luke, contra.  