State v. . Gaskins

MeriiiMON, J. (after stating the facts). Taking all the facts and circumstances in evidence together, as they naturally bear upon each *551 other, and the reasonable implications arising upon them, we think there was some evidence before the jnrv tending to prove the aspect of the case suggested by the special instruction prayed for by the appellants. The leading facts are, that the appellants, and the other persons indicted with them, on one side, and the deceased and his brother on the other side, quarreled, the quarrel having its origin about the father of the latter, who was present, and who had very shortly before that received some injury in a wrestle with Speight, that gave rise to angry words; that just as the quarrel seemed to have ended, and Speight proposed to one of his comrades to go home, the deceased and his brother held a conference apart from the appellants and the others, and the deceased, or his brother, immediately fired the pistol at Speight — it may not unreasonably be inferred, at the crowd — and hit Slade on the hand, tearing the flesh ; that the deceased and his brother at once ran off down the road; — these and other facts of minor import, certainly constituted some evidence of concert of action on the part of the deceased and his brother. Their passions were aroused, and they seemed to make common cause against the appellants and their comrades. There was some evidence of the concerted purpose. Of course, the jury must determine its weight — they might deem it sufficient to prove the combination — they might deem it insufficient. The instruction given by the Court in response to the special prayer was therefore erroneous. If there was a concerted purpose on the part of the deceased and his brother to assault the appellants and the two others iudicted with them, then it made no difference which of the two fired the pistol. The Court instructed the jury that if the surviving brother fired rhe pistol, the offence would not be mitigated to manslaughter. This was error. If the jury were satisfied that there was concert on the part of the brothers to assault the appellants, then the case would have been one of manslaughter; if the deceased had fired the pistol, as seems to have been conceded, then it would still be that grade of offence, although the surviving brother fired it. *552 Where the prisoner prays for a special instruction, and he is entitled to have it, or the substance of it, given, or to have it qualified and given, and the Court fails to give it, or the substance of it, or, giving it with modification, errs in his charge, this is ground for a new trial. The appellants are entitled to a new trial. To that end let this opinion be certified to the Superior Court according to law. Error. Reversed.