Samuel Moody vs. The State. ously entered. In a short time thereafter, the deceased was informed the store of Yeatman had been entered. He came down immediately from the "keno" room, where he was at the time he received the information, and went with another policeman to the store. Upon his approach, three persons, who were armed, near the door, fled. The door was found open; they went in; the deceased lighted a match; two negroes were found in the house; one or both were armed; he ordered them to surrender; they attempted to rush out; a pistol cap was bursted; immediately thereafter a pistol was fired; the ball passed near the witness, so near that he was "burned by the flash of the pistol," and struck the deceased. He turned and fell, and died in a short time, from the effects of the wound. The prisoner was recognized by the witness as the person he saw in the house, and he believes he fired the fatal shot. He was satisfied the prisoner was in the house, and present when the firing took place. The facts and circumstances of this case, leave no doubt upon the minds of the Court, the prisoner was in the house and present when the fatal shot was fired. The proof is not conclusive that the prisoner fired the shot that killed the deceased; but it is clear that he was present when the pistol was fired, by which the deceased was killed. The charge of the Court upon this point, is: "If one of the defendants willfully, deliberately, premeditatedly, maliciously and feloniously, shot and killed the deceased, as charged in the indictment, and any one of the confederates was near by, aiding and abetting such defendant; or was near, and willing to aid, if necessary, the said party; Samuel Moody vs. The State. or in the consummation of such slaying; or to give notice and prevent any aid or interference by other parties; then such party, or parties, so aiding and abetting, are equally guilty with the actual slayor." We think the rule is correctly stated by His Honor. To make an abettor to a murder or homicide, principal in the felony, two things are requisite: first, he must be present; second, he must be aiding and abetting in the felony. As to the first proposition: If several persons come to commit a felony or make an affray, and are of the same party, and come into the same house, but are in several rooms of the same house, and one be killed in one of the rooms, those of the party that come for that purpose, though in the other rooms of the same house, shall be said to be present: 1 Hale's Pleas of the Crown, 439. "The like in cases of burglary; though some stood at the end of the lane to watch if any come to disturb them; yet they are said to be burglars, because they are aiding and assisting in the burglary." "Second, Who shall be said to be aiding and abetting? The rule is, if divers persons come with the intent to do mischief, as to kill, rob or beat, and one doeth it, all are principals in the felony. Again, if a party go upon an unlawful purpose, and one of the company kill one of the adverse party, in pursuance of that design, all are guilty." It must be a killing in the pursuit of an unlawful act that all were engaged in; and in carrying out the original design, if any one of the party kill any one that oppose them, it would be murder in all the rest Samuel Moody vs. The State. of the company that come with the intent to do that unlawful act, though there was no express intention to kill any person in the first enterprise; because, the law presumes they come to make good their designs against all opposition. Such seem to be the well settled rules of the common law: 1 Hale's Pleas of the Crown, 441 and 444; Foster, 351; 2 Hawk., chap. 29, sec. 9; 1 Wharton's Crim. Law, secs. 116 and 124. And in such cases, whether the deceased falls by the hands of the accused, is immaterial. If he was present aiding and abetting when the mortal blow was given, all are principals and criminals in the highest degree. Apply these principles of law to the case under consideration. The prisoner, with others who are indicted, and one of whom was with him in the house at the time the deceased was killed, all seen together under circumstances to excite suspicion of some evil design; they are watched; shortly thereafter, a burglary is committed; the house of Yeatman is broken into by the prisoner and an accomplice; they enter the house; three of the party-all armed-remain on the outside. The deceased, a police officer, is informed of the breaking; upon his approach, the confederates escape; the officer enters the house; he finds the prisoner and another person with him, in the house; he commands their surrender; upon the striking of a light, a pistol is fired by one of the burglars; the officer is killed by the shot, and they escape. It can make no difference in such case, who fired the shot that killed the deceased; they are both principals and equally guilty. If The State vs. Thomas E. Leonard. the prisoner did not fire, he was present, assisting, aiding and abetting; and as such, must be punished as a principal. The case clearly falls within the definition of murder in the first degree, as defined by sec. 4598, of the Code. We are of opinion, after having given the case presented in this record, a careful examination, that the prisoners had a fair and impartial trial; that there are no mitigating circumstances; that the proof in the cause fully sustains the verdict of the jury; and we can see no error of law that can authorize a reversal. The judgment must be affirmed. THE STATE vs. THOMAS E. LEONARD. 1. EMBEZZLEMENT. County Trustee. Failure to pay over money to successor in office unexplained, is a felony. The failure and refusal of a County Trustee to pay over money in his his hands, belonging to the county, to his successor in office, is, unxeplained, evidence of a conversion of the money to his own use; and if proved, will establish the allegation in the indictment, that, the defendant did "embezzle and convert the money to his own use." The State vs. Thomas E. Leonard. 2. SAME. Proof may be made to disprove the felonious intent. Proof may be made by the defendant, of facts relieving his failure and refusal to pay over the money in his hands to his successor in office, of its felonious intent. FROM MEMPHIS. At the Term, 1869, the defendant demurred to the indictment in this case. The demurrer was sustained by the Court, and the State appealed. WM. HUNTER, presiding. Judge WM. M. RANDOLPH and THOS. H. COLDWELL, Attorney-general, for the State. KORTRECHT & CRAFT, for defendant. HENRY G. SMITH, J., delivered the opinion of the Court. Indictment against a County Trustee, for embezzling and converting to his own use, the moneys of the county which came to his hands by virtue of his office. The indictment charges, that the defendant did, unlawfully, fraudulently and feloniously, and without authority of law, embezzle the moneys of the county, and did convert them to his own use, by failing and refusing to pay over the same to his successor in office, etc. The objection is, that, the failing and refusing to pay over to his successor, is not a conversion, or evidence of a conversion, by the defendant, to his own |