Page:Bone v. State (1939).pdf/10

528 It is also urged and argued most forcefully that there are several other errors in the record. One of these arises out of the form of information which charges that both of these defendants shot and killed Mrs. John Deaver. It is argued that, since she was shot only one time, only one of the two shot her. Withont expressing any opinion as to any of the pertinent facts in the case, we suggest that according to the evidence offered on behalf of the state, both of the defendants were making an unlawful, if not felonious assault upon John Deaver when his wife made an effort to render help to him and was shot. The effect of this charge is that the two were acting jointly, both were present, so there was no such condition as aceessory before or after the fact. Therefore, both were deemed as principals, their guilt may be determined and their punishments be fixed accordingly as a jury may find. But it is urged by the defendants in this regard that they were merely attempting to protect themselves against threatened felonious assault of John Deaver, who had the pistol and was threatening to shoot one or the other or both of them, and that in a struggle to secure the pistol it was fired and Mrs. Deaver was shot. These contradictory matters were questions to be determined by a properly qualified and empanelled jury, so we hold that the court was correct in overruling any objections or demurrer to this information.

Defendants also argue that their rights were prejudiced by reason of the fact that the court gave certain instructions particularly in regard to the law of self-defense. This objection, we think, is wholly without merit for the reason that if the defendants were not acting in self-defense, they were certainly making an unjustified assault upon John Deaver at the time the fatal shot was fired. Their only excuse or explanation for being engaged in a controversy or embroilment with Deaver is that they were acting in the defense of their persons against being killed or suffering great bodily harm.

There was an objection also to evidence tending to show that Deaver was pretty badly beaten up and one