The prisoners declined to introduce any testimony. There are 12 assignments of error to the charge, and 6 to the testimony. The exceptions, broadly speaking, present two contentions for the prisoners : 1. That there was no sufficient evidence of a previous conspiracy between the prisoners to compass the death of the deceased. 2. That there was no sufficient evidence to submit to the jury, independent of that concerning the conspiracy to murder, against the defendant Ralph Conner.
The prisoners’ exceptions 1, 2, 3, 4, 5, and 6 are all based on the theory that there was no evidence of such conspiracy. All these exceptions are to the admission or exclusion of testimony. Assignment of error 1 is that the judge, in charging and defining what is a conspiracy in law, said: “It is not necessary to constitute the offense that the parties should have come together and agreed in express terms to unite for a common object. A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.” This is substantially the fifth syllabus in S. v. Knotts, 168 N. C., 173. To the same purport, S. v. Davis, 177 N. C., 573.
*756The court then proceeded to incorporate in bis charge the following, wbieb be told the jury was a quotation from S. v. Knotts: “In tbis connection I direct your attention to a concise statement of tbis principle contained in case of S. v. Knotts, decided by the Supreme Court of tbis State. £As soon as the union q>f wills for the unlawful purpose is perfected, the offense of conspiracy is complete. Tbis joint assent of minds, like all other facts of a criminal case, may be established as an inference of the jury from other facts proved; in other words, by circumstantial evidence. Individuals who, though not specifically parties to the assault, are present and consenting to the assemblage by whom it is perpetrated are principals when the assault is in pursuance of a common design. There may be no special malice against the parties slain, nor deliberate intention to hurt him, but if the act was committed in the prosecution of the original purpose, which was unlawful, the whole party will be involved in the guilt of him who gave the blow. "Where there is a conspiracy to accomplish an unlawful purpose, and the means aie not specially agreed upon or understood, each conspirator becomes responsible for the means used by any conspirator in the accomplishment of the purpose in which they are all at the time engaged. It makes no difference at what time any one entered into the conspiracy; it may be, as we have seen, and indeed must be some timé before it is fully executed.”
Tbe prisoners contend, under tbe first assignment, that there could not be an implied conspiracy unless there were words or acts to support it, and that they were lacking in tbis case.
There was evidence that tbe three brothers were together between twelve and one o’clock, when Sinclair declared be would not be arrested; that be bad as good a gun as any man ever shot; and Ralph said: “Yes; and I have got as good a gun as any man, and I will use it if I have to.” Then there is testimony that Sinclair was looking up tbe deceased and swearing as be did so that no man should arrest him; that be opened fire upon tbe officer almost immediately upon coming into bis presence; that Ralph forced bis way through tbe crowd, pistol in band, swearing and threatening to kill tbe officer, and coming up behind tbe officer fired two shots, without notice and without warning, into bis body, killing him.
From these facts and circumstances tbe jury might infer a previous conspiracy or coming together of their minds to kill any officer who attempted to arrest Sinclair. If there was such conspiracy or agreement, both these prisoners were rightfully convicted of murder in tbe first degree. All six of tbe assignments to tbe testimony were based upon thé theory that there was no evidence of such conspiracy, and cannot be sustained.
*757In reading the above excerpt from S. v. Knotts as to the definition of conspiracy, the court did not adopt the facts in that case, nor was it a glittering generality, or an abstract proposition of law forbidden by what was said in S. v. Jones, 87 N. C., 547, for the judge correctly applied the law to the evidence.
The prisoners’ assignments of error 3, 4, and 5 are to the judge’s statement of the testimony to the jury. "We find no just- ground of complaint. He told the jury it was only to refresh their memories, and they must be guided by their own recollection of what the witnesses said. Both before, and thereafter, the judge made the application of the law of conspiracy to the facts as testified to.
Assignments of error 6 and 7 are that the court did not submit the question of murder in the second degree as to Ealph Conner. The court charged the jury, as appears from the record, as follows: “As to Ealph Conner, you may return one of three verdicts — guilty of murder in the first degree, or guilty of murder in the second degree, or not guilty.” Assignment of error 8 is to the judge’s statement of the law of conspiracy as applicable to the aspects of the testimony in this case, but we find no error therein. His Honor told the jury, “The evidence supporting a conspiracy is generally circumstantial; it is not necessary to prove any direct act, or even any meeting of the conspirators, as the fact of conspiracy may be collected from the collateral circumstances of each case. It is for the court to say whether or not such connection has been sufficiently shown, but when that is done the doctrine applies that each party is an agent for all the others, so that an act done by one, in furthering the unlawful design, is the act of all, and a declaration made by one, at the time, is evidence against all.” This is sustained by 2 Whart. Grim. Ev., p. 1432.
In the assignments of error 11 and 12 the prisoners insist that the court was in error to submit the charge of murder in the first degree against Ealph Connor, because there was no evidence.
There was testimony which justified the jury in finding that there was a conspiracy between the prisoners to be inferred and indeed previous to the killing.
On reviewing the entire testimony, if believed by the jury, and which the prisoners did not see fit to attempt to contradict, the deceased and the other officers of the law came with a warrant to arrest the two brothers, Boizy Conner and Sinclair Connor, and both these men and their other brother Ealph were armed, and upon learning of the intention of the officers to arrest them Sinclair declared his intention not to be arrested, and Ealph concurred by declaring also his intention to use his weapon to prevent it; Sinclair fired at the officer, Boizy also came up and attacked the officer, but without a weapon, and when two of the *758officers arrested, and were bolding Boizy, Ralph Conner, the other prisoner, breaking through the crowd, which was trying to restrain him, came up behind the officer, declaring he would “kill the damned white man who had shot his brother,” and fired two shots into his body, killing him. This surely was sufficient evidence, if ever there could be such — of murder in the first degree, and exceptions 11 and 12 cannot be sustained.
The court instructed the jury that as to Ralph Conner they might return one of three verdicts. “Guilty of murder in the first degree; guilty of murder in the second degree, or not guilty.” And as to Sinclair Conner, “Guilty of murder in the first degree; guilty of murder in the second degree, or guilty of an assault with a deadly weapon, with intent to kill, in breach of the Act of 1919.”
The charge of the court is very full and complete, and presents every reasonable hypothesis in favor of both the prisoners. Besides charging fully as to what constituted a conspiracy, the court instructed the jury: “The State must further satisfy the jury, beyond a reasonable doubt, that said conspiracy between the prisoners was formed and entered into by them prior to the time that the fatal shot was fired. And that if they found, from the evidence, that the prisoner entered into such conspiracy for the purpose merely of resisting the officer, but not to the extent of taking his life, if necessary, the prisoners under the circumstances recited, nothing else appearing, would be guilty of murder in the second degree.” In the able charge the judge carefully protected the rights of the prisoners in every aspect, and we find no error as to either of the prisoners.