The Montgomery advertiser., 1904-11-03
FERGUSON V. THE STATE.


 Indictment for Murder.-Appeal from
 the Circuit Court of St. Clair
 1. Conspiracy: when evidence of facts pending after killing admissible; res jestae-On trial under an in dictment for murder, where 1t IS shown that the deceased was killed by the son of the defendant, and there was. evidence tending to show con spiracy between the defendant, and his son to kill the deceased, growing out of a previous difficulty between the son and the deceased; and it Is further shown that just after the deceased with his mother passed by the store of the defendant. where he and his son with others were standing, the son took shot gun from the store and went, ahead of the deceased to barn, and the defendant locked his store and went towards the barn with a pistol in his hand, and having gone but short distance, the son fired from the barn upon the deceased and inflicted a mortal wound and that the defend- ant continued, with his pistol In his hand, until he had nearly reached the place where the deceased lay dead when he met the latter's mother, who had started back towards the store, crying and upbraiding the slayer, the testimony of a witness, that the de-
 
 minute or two after the killing, he said to her, Where in the hell are you going?" is admissible, such state ment being a part of the res jestae of the killing.
 g. piracy; admissibility of evil dence.--On trial under an indictment for murder where it is shown that the deceased was killed by the son of the defendant. and there was evidence tn spiracy between the defendant and his son to kill the deceased, who had had a difficulty with defendants son, as a circumstance tending to show that the defendant aided or abetted in the com mission of the offense, it is permissi- ble for the State to introduce testi- mony that three or four days before the killing, the defendant discharged leads from his shotgun and reloaded and placed the gun in his store; it being shown that the defendants son inflicted the mortal wound with said gun, which he took from defendants s stcre.
 B. Same: same.-In such a case, testimony that the defendant, when asked what he would about the difficulty between his son and the deceased. said he was not going to do anything himself, but did not know what his son would do about it, is rel evant and admissible; such testimony tending to show in connection with the other evidence. a sinister design on the part of the son and the defend ants participation therein.
 4. Same; same.-In such a case, tes- timony that four or five days before the killing, defendant said that if his son killed the deceased, that he, the defendant, had 300 acres of land to spend to get him out of it, and that in the same conversation, when speaking of the deceased. he said 1t would not be any more harm to kill him than in killing a dog. is relevant and admissi- ble.
 6. Homicide; charge as to conspir- acy.-On a trial under an indictment for murder. where there is evidence tending to show that the defendant though he did not fire the fatal shot, ccnspired with his soh who did the shooting, for the killing of the de- ceased, and there is introduced evil dence tending to show that there was such a conspiracy between the de-, fendant and his son, a charge request ed by the defendant is erroneous and properly refused wich instructs the jury that there is no evidence in this case showing that the defendant, in any. way, conspired with his son to take the life of the deceased. or do, him other bodily harm, but that the undisputed evidence shows there was no such conspiracy"
 G. Indictment for murder conspir- acy; manslaughter.-On a trial and indictment for murder. where there is evidence tending to show that the de- fendant, though he did not fire the