OCHOA et al.
Supreme Court of New Mexico
72 P.2d 609, 41 N.M. 589 (1937)

 SADLER, Justice.

 The defendants were convicted of murder in the second degree in a trial before the district court of San Juan county on change of venue from McKinley county. They prosecute this appeal from the judgment of conviction pronounced upon them at such trial. The victim of the homicide was M. R. Carmichael, sheriff of McKinley county. He was slain while accompanying a prisoner from the office of the local justice of the peace to the county jail.

 The homicide occurred about 9:30 o' clock in the forenoon of April 4, 1935. A few days previously one Esiquel Navarro, one Victor Campos, and a Mrs. Lovato had been arrested on warrants charging the unlawful breaking and entering of a certain house. Theretofore the house had been occupied by said Campos who was evicted in forcible entry and detainer proceedings. Following eviction, so the charge ran, the three persons just mentioned forcibly re-entered the house and replaced Campos' furniture therein. The preliminary hearing for Navarro, who was confined in jail, was set for 9 a. m., April 4th.

 The house in question was located in a section of Gallup known locally as Chihuahuita, largely occupied by former employees of a coal mining company. Considerable excitement had been engendered among them by the eviction proceedings and the approaching trial of Navarro. At a mass meeting held in Spanish-American Hall in Gallup on the afternoon of April 3d, attended by some fifty or sixty people but not shown to have been called especially for the purpose, a committee was appointed to confer with Sheriff Carmichael regarding Navarro. The committee waited upon the sheriff and demanded Navarro's release. This request was denied. Some members of the committee then asked permission to talk with Navarro. This request likewise was denied by the sheriff, who informed the committee Navarro's trial would take place at 9 a. m. the following day and that they then could see him.

 The sheriff, accompanied by several deputies, left the jail with the prisoner, Navarro, shortly before 9 o'clock the morning of April 4th and proceeded to the office of Justice of the Peace William H. Bickel on Coal avenue, a distance of one and one-half blocks. Arriving there, they found the justice engaged in the hearing of another matter and were compelled to await the conclusion of that hearing. Soon after they arrived a crowd of approximately 125 people, included in which were many women and children, gathered on the sidewalk and in the street in front of the office of the justice of the peace. The crowd was made up largely of friends of the prisoner, Navarro. The officers, even [p. 612] before leaving the jail with the prisoner, had become apprehensive that an effort might be made to rescue him. So that, when the crowd sought admittance to the justice's chambers which had seating capacity for not more than 25 spectators, none except witnesses were permitted to enter.

 The crowd in front grew threatening. They pressed against the plate glass windows to the extent that one of them was cracked; pounded on the windows with their fists; shouted, cursed; and some threatened to kick the door down if they were not admitted. After some delay incident to completion of the other hearing, and upon Navarro's objection that he had no attorney, the hearing of his case was postponed for the purpose of enabling him to secure an attorney to represent him.

 Apprehensive of trouble in attempting to make their exit from the office of the justice through the crowd at the front entrance en route back to the jail, the sheriff directed that Navarro should be removed through the rear door. In an endeavor to screen as much as possible this maneuver from the crowd in front, the sheriff directed two of his deputies to stand against the front windows.

 As Sheriff Carmichael reached for the prisoner's arm to begin the exit from the building, Navarro communicated with the crowd outside by a motion with his arms suggestive that he was being removed through the rear door. This door opened into a 16-foot paved alley extending from Third street to Second street. Third street intersects Coal avenue, upon which the justice's office is located, only a few doors west of the front entrance to said office. The jail is located on Second street at its intersection with the alley, and it was the plan of the officers to escort the prisoner through the alley to the jail, thus avoiding the crowd.

 Upon discovering the maneuver of the officers, however, the crowd ran to the corner of Third street and Coal avenue, down Third to the alley, and converged eastwardly upon the rear entrance to the justice's office, forming in a semicircle around the entrance. The officers, nevertheless, succeeded in getting their prisoner into the alley, pushing their way through the crowd, and proceeded eastwardly toward the jail with the prisoner. Sheriff Carmichael was on the prisoner's right, holding him by the right arm, and Undersheriff Dee Roberts was on the prisoner's left, holding him by the left arm, walking eastwardly toward the jail. As they proceeded up the alley toward the jail they were surrounded by the crowd, some of whom were ahead of them, some on either side and some to their rear. The officers with the prisoner were followed by Deputies E. L. "Bobcat" Wilson and Hoy Boggess in the order named.

 The prisoner was obstinate, holding back and forcing the officers to push or urge him on. An unidentified person in the crowd had been heard to shout: "We want Navarro." When they were about forty feet from the rear exit of the justice's office, Deputy Hoy Boggess observed someone, unknown to him, grab at the prisoner as if to take him from the custody of the officers. Thereupon, he raised his arm and hurled a tear gas bomb to the rear and westwardly into the crowd in the alley. Almost simultaneously with the detonation from explosion of the bomb, a shot was fired somewhat to the rear of the officers accompanying the prisoner. Then a second shot followed the first, apparently fired by Ignacio Velarde, a brother of the defendant Leandro Velarde, from a point at the northeast corner of the Independent Building, some fifteen feet from Sheriff Carmichael. This shot struck the sheriff in the left side of the face and passed out of his body on the right side of his neck. The first shot fired had struck the sheriff in the left side, just under the left arm, passed through his chest and out into his right shoulder. He died instantly, his undersheriff, Dee Roberts, catching hold of his right arm and lowering his body to the pavement. The latter then looking to the west observed two men firing toward him. One was on his left at the corner of the Independent Building, perhaps fifteen feet distant. This proved to be Ignacio Velarde. The other was farther down the alley about twenty feet and to his right. This was Solomon Esquibel. Their fire was returned by Undersheriff Roberts, and both Ignacio Velarde and Solomon Esquibel were killed.

 In the meantime the firing had become more general, the total number of shots fired during the affray being twelve to fifteen. When the firing ceased, besides Sheriff Carmichael and the two others named being killed, Deputy Wilson had been seriously wounded by a bullet which [p. 613] entered his body about an inch below the armpit and was later extracted. Two other members of the crowd had received wounds, a woman by a shot through the leg. Both of these wounded, as well as Deputy Wilson, subsequently recovered.

 With this general statement of events leading up to the homicide, we shall now particularize in our statement of the facts, detailing the evidence upon which the state relies to show guilty connection of defendants with the resulting homicide. This will require some recapitulation.

 About the time it was appreciated by the crowd in front that the prisoner was to be removed through the rear door into the alley, the defendant Leandro Velarde was seen going through the crowd motioning toward the west, the direction to be taken to reach the alley, and he went into the alley practically at the head of the crowd.

 The three defendants, Leandro Velarde, Manuel Avitia, and Juan Ochoa, along with certain other defendants acquitted at the trial, were identified as being in the crowd in front of the justice's office and also in the crowd at the rear of the office in the alley after it had hastened there upon discovering that the prisoner, Navarro, was to be removed through the rear door and thence via the alley to the jail. The present defendants, along with Ignacio Velarde and Solomon Esquibel, slain during the affray, were in the forefront of the crowd formed in a semicircle around the rear entrance as the officers prepared to emerge with their prisoner.

 Just before they took the prisoner through the rear entrance, former Deputy Fred Montoya, who formed one of the sheriff's party at the justice's office, at the sheriff's request, opened the rear door. He took one step outside. There confronting him among those recognized were Ignacio Velarde, Leandro Velarde, and Solomon Esquibel. Leandro Velarde, clenching his fist and raising it in a threatening manner, said to Montoya: "Now you shall see what happens disgraced (one)." Solomon Esquibel, reaching his right hand into a partially open blue jacket worn at the time as if to draw a weapon, said: "You move back, leave them to us alone." Montoya being unarmed immediately moved back inside the office of the justice of the peace.

 Contemporaneously with Montoya's return to the inside of the office, Sheriff Carmichael and Undersheriff Dee Roberts emerged therefrom with the prisoner. As they did so and started pushing their way out into the alley, the defendant Juan Ochoa, from a distance of about three feet, struck at Undersheriff Dee Roberts with a claw hammer.

 When the officers had advanced a short distance up the alley with their prisoner, the defendant Manuel Avitia drew a pistol from his pocket and rushed from the rear through the crowd toward the officers. After hurling the tear gas bomb, and just before being struck and rendered unconscious, Deputy Boggess observed the defendant Leandro Velarde only a few feet from him on the right; Solomon Esquibel, later slain, not far away; and the defendant Manuel Avitia running toward him (Boggess). When Boggess fell unconscious from a blow on the head delivered by some unidentified person in the crowd, his pistol fell from his belt to the pavement. Two members of the crowd were seen to spring toward same and to be bent over as if to recover it, but, their bodies screening it from view of the witness relating the incident, neither of these persons was seen actually to pick up the pistol.

 While Deputy Boggess was down on the paving and after the firing had begun, the defendants Avitia and Ochoa, with two or three other persons, were seen beating and kicking him. When the shooting had ceased Avitia ran west out of the alley with a pistol in his hand.

 Juan Ochoa was chairman of the meeting held at Spanish-American Hall the afternoon before the affray at which meeting a committee was named to interview the sheriff regarding Navarro. Leandro Velarde attended the meeting and was named a member of said committee, though it is not established that he actually went with the committee to see the sheriff. Manuel Avitia also was present at the meeting.

 On March 29th, preceding the affray, at a gathering at the home of one Mrs. Conception Aurelio about 4 o'clock in the afternoon, Leandro Velarde told the group, there gathered, "to prepare for the following day at 8 o'clock in the morning; that they were to be ready at the house of Victor Campos and to be prepared--to be ready and let the officers take their weapons; that they didn't need anything else but a tooth pick." Also he said at this time that the first one they wanted to get hold of was Carmichael, "because he had [p. 614] a feeling against Carmichael and Carmichael had a feeling against him." He further said, "that he didn't care to die for the poor; that he had a big body and he was going to stick it out for the poor." The meeting planned evidently had to do with restoring Campos to the house from which he had been evicted.

 About thirty minutes after Sheriff Carmichael was killed, Leandro Velarde returned home and withdrew from the bib of his overalls an ice pick some six inches in length and placed it in an ice chest.

 When Deputy Hoy Boggess regained his feet upon a return of consciousness, he saw Deputy Wilson approaching him in a stooped posture and heard him say: "I'm shot." Finding his own pistol missing, he seized that of Wilson and still in a dazed condition fired twice at two persons he saw fleeing, one of whom he thought was the prisoner Navarro making his escape. He could not say whether either of his shots took effect.

 The pistols with which Ignacio Velarde and Solomon Esquibel were seen firing were never located after the affray. The pistol which dropped from Deputy Boggess' belt when he was knocked unconscious was never recovered. Sheriff Carmichael's pistol was removed from its scabbard on his body after his death. It had never been fired. The bullet which had entered the body of Sheriff Carmichael under the left armpit was later extracted from his right shoulder. The bullet which had wounded Deputy Wilson likewise was later extracted. The pistol which Deputy Boggess lost during the affray and which had not been fired by him when lost was a forty-five Smith and Wesson double action. The bullet removed from the body of Sheriff Carmichael and that extracted from Deputy Wilson were both fired from the same pistol and it was of the same make and caliber as that lost by Deputy Boggess, using the same type of ammunition as that then employed in the Boggess gun.

 The defendants were proceeded against by information, the State electing to employ the short form authorized by Trial Court Rule 35--4407. Ten were thus accused of the murder of Sheriff Carmichael, of whom seven were acquitted by the jury. The three defendants above named having been convicted of second degree murder, they alone prosecute this appeal. The most serious claim of error is directed at the action of the trial court in submitting to the jury the issue of second degree murder. It is claimed the evidence does not warrant submission of second degree. If this claim be good as to all of the defendants it is decisive. Hence, we give it first consideration. The facts as we have recited them are within the verdicts of guilty returned against defendants. Do they support second degree? That is the issue.

 Justifying the submission of both first and second degree, the Attorney General in the State's brief says: "Discarding all of the theories requiring a first degree or nothing verdict, we still have two theories presented by the evidence shown (under) which the jury might find the appellants guilty of second degree murder. First, that one of the appellants actually shot and killed Sheriff Carmichael. Second, that the appellants or any of them aided and abetted the person or persons who actually shot and killed Sheriff Carmichael.

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 The distinction between an accessory before the fact and a principal and between principals in the first and second degree, in cases of felony, has been abolished in New Mexico and every person concerned in the commission thereof, whether he directly commits the offense or procures, counsels, aids, or abets in its commission, must be prosecuted, tried, and punished as a principal. Laws 1933, c. 105; Trial Court Rule 35--4439. The evidence of aiding and abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider's support or approval. State v. Wilson, supra. Mere presence, of course, and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient. Territory v. Lucero, supra; State v. Hernandez, 36 N.M. 35, 7 P.(2d) 930.

 Before an accused may become liable as an aider and abettor, he must share the criminal intent of the principal. There must be community of purpose, partnership in the unlawful undertaking.

 "To aid and abet another in a crime one must share the intent or purpose of the principal. If two or more acting independently assault another, and one of them inflicts a mortal wound, the other is not guilty as an aider and abettor. An aider and abettor is a partner in the crime, the chief ingredient of which is always intent. There can be no partnership in the act where there is no community of purpose or intent." Landrum v. Commonwealth, 123 Ky. 472, 96 S.W. 587, 588, as quoted in Gill v. Commonwealth, 235 Ky. 351, 31 S.W.(2d) 608.

 "To render one an aider or abettor and, as a consequence, guilty in like degree with the principal in the commission of a crime, there should be evidence of his knowledge of the intention or purpose of the principal[p. 616] to commit the assault. In other words, there must have been a 'common purpose' by which is meant a like criminal intent in the minds of Mills and the appellant, to render the latter guilty as charged, and hence authorize the giving of the instruction." State v. Porter, 276 Mo. 387, 207 S.W. 774, 776.

 With these preliminary observations, we shall proceed to apply them to the facts of the instant case. As to the defendant Leandro Velarde there is no evidence which sufficiently connects him with the unlawful design of the slayer of Sheriff Carmichael. The last time seen prior to the hurling of the tear gas bomb and the firing of the first shot, he was in the crowd a few feet removed from Deputy Boggess. There apparently was nothing about his actions when then seen to excite suspicion. If so, it was not testified to by any witness.

 Much of what he is shown to have said and done at and about the scene of the justice court trial and upon exit of the officers and their prisoner into the alley would be somewhat significant in proof of the charge of conspiracy. But of that charge he was acquitted. It would even serve to color and characterize any overt act or conduct on his part after he became aware that some member of his party was firing or was about to fire on the sheriff and his party. But no such act or conduct appears in the evidence. He is not shown to have taken part in the assault on Deputy Boggess, as were Avitia and Ochoa. . . .

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 . . . .  We do not find in the record evidence supporting the conviction of this defendant as an aider and abettor. Mere suspicion does not furnish the required support. Watkins v. Commonwealth, 227 Ky. 100, 12 S.W.(2d) 329.

 The defendants Avitia and Ochoa are differently situated. After Deputy Boggess hurled the tear gas bomb, he was knocked down and rendered unconscious for a time. Firing from the party of which they formed a part started [p. 617] almost instantly and continued until a total of as many as 12 or 15 shots had been exchanged between members of the two parties. Even if it be assumed that these two defendants were without previous knowledge of the purpose of the slayer or slayers of deceased to make an attempt on his life, the evidence abundantly supports an inference that with the firing of the first shot they became apprised of that purpose. The intent to kill, or to aid and abet in the commission thereof, may be formed at the scene of the crime, even though the accused may have gone there without such intention. People v. Will, 79 Cal.App. 101, 248 P. 1078. If, with knowledge that one of their party was using or was about to use a deadly weapon, they or either of them rendered aid or assistance to him or them engaged in the deadly assault, they are equally guilty as aiders and abettors. The aider under such circumstances adopts the criminal intent of the principal. State v. Powell, 168 N.C. 134, 83 S.E. 310. Both Avitia and Ochoa are identified in the testimony as being still engaged in an assault upon the fallen Boggess after two bullets had entered the body of the deceased. Boggess was a deputy of the slain sheriff and, of course, would be expected to come to the aid of his chief in peril. The fact that they were thus engaged in a vicious assault upon him (Boggess), after firing upon the sheriff's party, commenced, left it within the jury's province to infer, if it saw fit, not alone that these defendants shared the intent of the slayer, but also that they aided and abetted him in his unlawful undertaking.

 Nor would it seem an unwarranted inference, if the jury should elect so to find, that these defendants saw the sheriff's assailant in the act of drawing or aiming his gun and commenced the assault on Deputy Boggess momentarily before or simultaneously with the first outburst of gunfire. Particularly is this true in view of the fact that the assault on Boggess did not cease when it must have become known to the defendants that a member of their party was firing on the sheriff's party. Such an inference, however, is not essential to sustain the verdicts.

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. . . . [H]owever free from felonious intent a participant in the combat of opposing parties may have been in the beginning, once it becomes known to him that another member of his party is employing a deadly weapon, he exposes himself to an inference of sharing the latter's intent if, except in necessary defense of his own person, he continues his participation. The question of whether the alleged aider and abettor did share the principal's criminal intent, and whether he knew the latter acted with criminal intent, is one of fact for the jury and may be inferred from circumstances. Wharton on Homicide (3d Ed.) § 50.

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 Nor is error present in instruction No. 17 as given by the court in its relation to the defendant Ochoa. The objection is that it submitted the issue whether Ochoa, himself, killed the deceased. It is claimed Ochoa was prejudiced in submission of this issue in this--that there was no evidence whatever that he did so. Of course, the issue of his aiding and abetting in the killing also was submitted.

 We heretofore have pointed out the uncertainty in the evidence as to who fired at least one of the shots contributing to the death of Sheriff Carmichael. It was unnecessary for the State to show who actually fired the fatal shot if the proof was sufficient to warrant the inference as to a given defendant that, if he did not fire it, he aided and abetted him who did. Ratliff v. Commonwealth, 182 Ky. 246, 206 S.W. 497; State v. Kukis, 65 Utah 362, 237 P. 476, 477; People v. Petruzo, 13 Cal.App. 569, 110 P. 324; State v. Capaci, 179 La. 462, 154 So. 419; State v. Luster, 178 S.C. 199, 182 S.E. 427; State v. Allison, 200 N.C. 190, 156 S.E. 547; People v. Udwin, 254 N.Y. 255, 172 N.E. 489; Maloy v. State, 8 Ala.App. 73, 62 So. 961; Commonwealth v. Murrano, 276 Pa. 239, 120 A. 106.

 We are unable to see error as to the defendant Ochoa in submission of the issue whether he actually killed the deceased in view of our conclusion that the [p. 622] evidence supports an inference that he aided and abetted in such killing. Morally, there never has been a distinction in the degree of culpability. The law long since has ceased to recognize any. All are subject to prosecution, trial, and punishment as principals. Laws 1933, c. 105; Trial Court Rule 35--4439. The aider and abettor may be tried and convicted even though the actual slayer is never apprehended or has been tried and acquitted. Cf. Rule 35--4426. "If A be indicted as having given the mortal stroke, and B and C as present, aiding and assisting, and upon the evidence it appears that B gave the stroke and A and C were only aiding and assisting, the evidence will maintain the indictment, and judgment be given against all the defendants, for it is only a circumstantial variance, as, in law, the mortal blow is the act of all that are present aiding and abetting." 1 Chitty's Crim.Law (5th Ed.) 259. See, also, 1 Wharton's Crim.Law (12th Ed.) 345-347, §§ 259, 260.

 The law having so completely abolished the distinction between principals in the first and second degree and the law being that, even though another fired the fatal shot, it is in contemplation of law Ochoa's act if he aided and abetted, we can see no prejudice in the instruction complained of.

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 It follows from what has been said that the judgment of the district court must stand affirmed as to the defendants Avitia and Ochoa. As to the defendant Velarde, it is reversed, with a direction to the trial court to set aside the judgment of conviction pronounced upon him and to discharge the prisoner.

 It is so ordered.