People v. Sidelinger

HALL, J.

Appeal from judgment of conviction of murder in the second degree and order denying motion for a new trial.

This is a companion case to the case of the

People

v.

Hayes,

this day decided, and several of the questions decided in the Hayes ease arise in this case. Sidelinger is charged with killing the same person that Hayes was charged with killing, apparently not upon the theory that Sidelinger fired the fatal shot, but upon the theory that he was present aiding and abetting the killing of William Jenks, or that he was a co-conspirator of Hayes and others, and the killing was the act of one of the co-conspirators. At any rate, there is no evidence in the record that connects this defendant with actually firing the fatal shot. The evidence concerning the killing, and the incidents leading up thereto, are practically the same as in the Hayes case.

In this case, as in the Hayes case, defendant requested the court to give an instruction upon the question of manslaughter entirely correct as a statement of law, but which the court refused to give, apparently upon the theory that under no aspect of the evidence could the jury find the defendant guilty of manslaughter. ' For the reasons given in the opinion this day filed in the Hayes case the court erred in so doing. The issue of manslaughter should have been submitted to the jury. If, in fact, Hayes actually killed Jenks, and in so doing only committed the crime of manslaughter, his aiders and abettors were only guilty of manslaughter. (Wharton on Homicide, 57;

Goff

v.

Prime,

26 Ind. 196;

Polly

v.

Commonwealth,

15 Ky. Law Rep. 502, [24 S. W. 7];

State

v.

Dunn,

116 Iowa, 219, [89 N. W. 987];

Wheeler

v.