JOHNSON ET AL.
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Maggie Johnson and others were indicted for murder in the first degree, and they appeal from an order dismissing a petition for bail. Affirmed.
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[p. 183] TYSON, J.
This is an application for bail, after indictment found charging the petitioners with murder in the first degree. On a hearing, the judge dismissed the petition, and remanded the prisoners to jail. The correctness of the ruling of the judge upon the trial is assailed only in one particular.
The evidence establishes that the father of these petitioners shot and killed a deputy sheriff in resisting his arrest by that officer and others. No justification is shown for the killing. And it is reasonably certain that had these petitioners not interfered, the killing would not have occurred. Indeed, their father would have been overpowered by the officers without bodily harm to him, and thus been rendered impotent to have procured and used the pistol with which he inflicted the deadly wounds, had they not by their conduct freed one of his hands from the grasp of the officer who was killed. That these petitioners' conduct, under the evidence, was the cause of the killing, scarcely admits of doubt. But it is said that the father was insane at the time of the killing, and that his insanity was known to the petitioners, and that they should have been permitted to prove these facts. The theory seems to be that if he was insane, and therefore incapable of committing murder, the petitioners are not criminally responsible for his act of firing the pistol which produced the death of the officer. Had the trial judge permitted this proof to have been made, and had found in line with it, in view of the conduct of the petitioners on the occasion of the homicide, which was calculated to incite and did incite the father to commit the crime, they are responsible for his act. As said by Mr. Bishop: "The method of the killing is immaterial. Thus * * * in some cases a man shall be said, in the judgment of the law, to kill one who is in truth actually killed by another, as where one incites a madman to kill himself or another." 2 Bishop's New Cr. Law, § 635. This principle is stated by Russell on Crimes, p. 5, in this language: "If A. procures B., an idiot or lunatic, to kill C., A. is guilty of the murder as principal, and B. is merely an instrument." See, also, 1 East, P. C. c. 5, § 14, p. 228; 1 Hawkins, P. C. § 7, p. 92.