know, and be informed that on the 7th day of January, 1892, in Cowley county, and the state of Kansas, one A. W. Patterson and William T. Standeford did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly, and with their malice aforethought make an assault upon one Peter Hinton, then and there being, and with a certain pistol commonly called a revolver, then and there charged with gunpowder and leaden bullets, which said pistol he, the said A. W. Patterson and William T. Standeford, then and there had and held, and then and there did feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought discharge and shoot off, to, against, and upon him, the said Peter Hinton; and that he, the said A. W. Patterson and William T. Standeford, with a certain leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said A. W. Patterson and William T. Standeford discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and with their malice aforethought, with intent him, the said Peter Hinton, in the manner aforesaid, to kill and murder, did strike, penetrate, and wound him, the said Peter Hinton, upon and in the breast and body, thereby giving to him, the said Peter Hinton, one mortal wound, of which said mortal wound the said Peter Hinton then and there, on the 7th day of January, 1892, at the county of Cowley aforesaid, and within the jurisdiction of this court, instantly died, contrary to the form of the statutes of the state of Kansas in such case made and provided, and against the peace and dignity of the state of Kansas. That the said A. W. Patterson and William T. Standeford, in manner and form aforesaid, did feloniously, willfully, deliberately, and premeditatedly and of their malice aforethought the said Peter Hinton kill and murder. George W. Scott, County Attorney." On April 18, 1893, the defendant filed a motion to quash the information upon the following grounds: "(1) That the facts stated therein do not constitute a public offense; (2) that the said information is not direct and certain as regards the offense and parties attempted to be charged; (3) that the offense or offenses attempted to be charged therein are not clearly set forth in plain and concise language and without repetition; (4) that the offense attempted to be charged therein is not stated with such degree of certainty that the court may pronounce a judgment thereon upon conviction according to the right of the case; (5) that there are two offenses attempted to be charged therein." This motion was overruled by the court on the 22d day of April, 1893. It appears from an affidavit on file that the clerk of the district court delivered for the defendant to D. L. Weir, one of his attorneys, a certified copy of the information on the 6th day of April, 1893. On the said 22d day of April v.34P.no.9-50

the defendant was duly arraigned, and, after hearing the information read, pleaded not guilty. Upon motion, a separate trial was granted to each of the defendants, and on the 22d day of April, 1893, the trial of A. W. Patterson, the defendant, commenced. The state appeared by George W. Scott, county attorney, and W. P. Hackney and J. C. Pollock. The defendant was present in person and by his attorneys, Messrs. Troup & Brown and Swarts & Weir, and also by Ben S. Henderson, Esq.

Upon the trial of this case there was evidence introduced on the part of the state showing, among other things, that on the morning of the 6th of January, 1892, Peter Hinton, the deceased, was at the Fifth Avenue Hotel, in that city, and that in the afternoon of that day he had upon his person six hundred or more dollars; that A. W. Patterson was at that time proprietor of the Gladstone Hotel, one of the principal hotels in Arkansas City, and that in the basement of the hotel there was a billiard room, a gambling room, and a "joint," where intoxicating liquors were unlawfully sold. In the operation of the gambling room, Ed Kinney was the partner of Patterson. John Boucher had charge of the joint. Harry Holland was the barkeeper in the joint, and Charles Taylor was the dealer in the gambling room. William T. Standeford, alias "Missouri Bill," a brother-in-law of John Boucher, was around the joint and gambling room very much. In the afternoon of the 6th of January, 1892, John Boucher and William T. Standeford went with another person to the Fifth Avenue Hotel, and soon after approached Peter Hinton, and invited him to take a drink with them. This he declined. They then invited him to go away from there with them. This he also declined. They then went away, but soon after returned, and made inquiry for Hinton, but he was gone. Later Hinton visited the gambling room under the Gladstone Hotel, and, after gambling awhile, won $17. He exhibited in the gambling room a large roll of money. At that time there were present, besides Hinton, the defendant, A. W. Patterson, John Boucher, William T. Standeford, Ed Kinney, Harry Holland, and others About 8 o'clock P. M. Hinton went to the theater with Ed Kinney, and stayed there. until about half past 10 o'clock P. M., when he and Kinney and John Harris left the theater and returned to the hotel, and went into the gambling room again, and engaged in gambling, at which he lost about $15. It was then about 12 o'clock midnight, and all the parties left the gambling room, and weut into the joint adjoining.

John Harris, who was in the joint, testified as follows: "Question. Who all was in that room at that time? Answer. My best recollection is, A. W. Patterson, Missouri Bill, [Standeford,] Harry Holland, Kinney, Kid. Anderson, myself, and a kid,-I don't know who he was. Q. What was that room

used for at that time? A. For a joint. Q. What was Hinton doing in that room at that time? A. Drinking, the same as the rest of them. Q. What was the reason you left that room that night when you did? A. Because I thought there was going to be trouble,-a fight. Q. You thought there was going to be trouble? A. Yes, sir. Q. I wish you would describe to the jury what took place there in that room that night that suggested to you that there was going to be trouble. A. Slapping each other's hats off and calling each other bad names. Q. Did they appear to be drunk,-the crowd, or any of them? A. Yes, sir; some of them. Q. Who of the crowd appeared to be drunk? A. Why, I can't say they were drunk; they were drinking. Q. Boozy, then; who of the crowd was boozy? A. All of them. Q. All the crowd? A. Yes, sir. Q. Who went away with you, when you thought there was going to be a row? A. Ed. Anderson. Q. Who did you leave in the room there when you and he went away? A. Patterson, Missouri Bill, [Standeford,] Harry Holland, Peter Hinton, Ed Kinney, and some kid."

Jerry Ward, merchant police, passed the joint in the basement of the Gladstone Hotel about midnight on the 6th of January, and he testified as follows: "Answer. I heard them fighting down there,-like as if quarreling, some of them. Question. It did attract your attention? A. Yes, sir. Q. What did you do? A. I listened awhile, and then walked on; and they seemed to have quieted down. Q. Was it loud and boisterous? Yes, sir. Q. What kind of noise was it? A. It sounded as though I could hear John Boucher's voice as though he was trying to get at somebody to fight,-quarreling with somebody. Q. Did you know John Boucher at that time? A. Yes, sir. Q. Knew his voice? A. Yes, sir."

A.

A. Abbott, a resident of Arkansas City, testified that "about midnight of January 6th he was on the sidewalk in front of the Gladstone Hotel. He heard loud swearing in the basement of the hotel, and went to the door of the joint. Question. What room was the noise being made in at that time? Answer. In the joint. Q. Now, what did you hear while standing there? A. Well, there was cussing and swearing; and when I stepped up to the door somebody says, "The son of a bitch has cut me;' and I stepped to the door then, and took hold of the knob, and found the door was fast. Q. What else did you hear? A. Then somebody else says, 'Why don't you kill the son of a bitch?' or 'Go and kill the son of a bitch,' or something like that. I would not swear positive what it was."

Ed Kinney testified as to the occurrences in the joint as follows: "Question. You may state what you saw that attracted your attention. Answer. Well, sir; I was out in the hotel. I heard some loud talking and

quarreling. I think I was in the billiard room,-had walked in there.-and I went back into the joint room, and Hinton stood to the right of the door. Boucher stood in front of him, and Hinton had his back to the wall. And Boucher stood in front of him, and insisted on licking Hinton, and Hinton didn't want to fight,—said he didn't want to fight, and Boucher was going to lick him any way, and did commence punching him, and they scuffled around there a little oit and Hinton struck at Boucher. I think b had a knife in his hand, but I can't say posi tive that I saw the knife. Boucher jumped back, and run around behind the table, and commenced throwing beer bottles at Hinton. and Hinton retreated into a corner to the left, behind the door. I think Boucher threw one or two bottles at him, and struck close to him or hit him, I don't know which; and then Hinton went to the door, and tried to get out, and Boucher kept throwing beer bottles at him, but Hinton finally got out and run. Q. How was the door, as to being locked, or otherwise? A. It was locked with

a

spring lock. Q. What happened after that? A. After Hinton left, Boucher said, "The son of a bitch has cut my hand,' or 'He cut me with a knife;' I am not positive which. They gathered around Boucher to look at his hand, and Patterson says, 'Why don't you kill the son of a bitch? Boucher says, 'I haven't any gun,' and Patterson says, 'I will go and get you a gun,' and turned around and went out the same door that Hinton did; and Standeford and Boucher staid there for perhaps a minute, and they went out the other door. Q. Well, where did you stay? A. I staid there. Q. Who was in there then besides you? A. Harry Hol land. Q. What next happened? A. Hol land and I staid there talking, and we heard the report of-as we talked-of a pistol."

Jesse Feagans, a policeman in, Arkansas City, testined: "Do you know the defendant, A. W. Patterson? Answer. Yes, sir. Ques tion. Do you know one W. T. Standeford. otherwise called 'Missouri Bill? A. Yes, sir. Q. Did you know John Boucher? A. Yes, sir. Q. Did you know Peter Hinton in his lifetime? A. I can't say that I did. Q. Did you see Peter Hinton before he was killed? A. Yes, sir; it proved to be him afterwards. Q. Did you see him killed? A. Yes, sir. Q What time in the day or night were you to go on duty? A. Twelve o'clock. Q. Day or night? A. Night. Q. How long did you remain on duty? A. Till next day twelve. Q On the night referred to,-this night between the 6th and 7th days of January, 1892,—what time did you go on duty that night? A. I think about twelve o'clock. Then where did you go? A. Started to the Saddle Rock restaurant. Q. For what pur pose? A. For a lunch. Q. Did you see any. body that attracted your attention while you were in that Saddle Rock restaurant? A.

Q

John Boucher.

Q. What was he doing? A. He looked in. He looked frightened, and kind of like as if he had been drinking some. He attracted my attention, and I asked him what was the matter, and if anything was wanted, and he said, 'No,' he was looking for a party. Q. Then what did you do? A. He pulled the door to, and as he pulled it to I held to it, and he went out of the doorway and went south, and we all three came out and walked after him as far as police headquarters, and went upstairs. Soon afterwards I put on my overcoat, and started over to the Central, to get a deck of cards. Q. State how you went. A. I came down to the corner, and out and across like, and I passed south from four or five feet from the corner, and saw Peter Hinton, as I since learned, leaning with his left shoulder against a post. Q. Facing which way? A. Northeast. His head was sort of downward. John Boucher was standing with him like. I came down here, and walked right past that gentleman, and came over here. When I got to the center of this street here, I heard those men say something, and I looked, and I turned around to see what the trouble was, and then there was a silence, and I walked out to here, and when I got here, I saw two men come walking up from the north and stop there,-north to this Bonsall building here. Q. What did those two men do? A. They stopped over here. Q. In front of that building? A. One of them stepped right into the recess here, and the other one stood down against the door. Q. Where were you when you saw them? A. When they came walking up here, I was just here,-about here somewhere. I didn't go clear to this point, and I went right straight across to those men. Boucher said, 'My name is John Boucher; my name is John Boucher;' this last time growing angry; and I thought these men-one of them-was the night police, who would come on about that time. Q. What was the name of the policeman you expected to find there? A. George Bean. I thought I would go over to this policeman, and if they didn't quit we would take them to jail. Q. And when you got over there, who did you find it was? A. Missouri Bill [Standeford] and Mr. Patterson. Q. The defendant here? A. Yes, sir. Q. Whereabouts was the defendant? A. He was standing in the recess of the door. Q. Whereabouts was Bill Standeford, or Missouri Bill, as you call him? A. He was standing right against the door, facing on the pavement. Q. Go on and tell what took place. A. When I turned up here, to these men, at first I thought it was the night policeman, and when I turned here my back was to Boucher and Hinton, and I could not find out who Missouri Bill was. I thought he looked like Johnnie Miller. He had his hat sort of down, and had on a black hat. I knew Patterson when I put my eye on him; knew who it was, when I saw him;

Q

but I didn't know Missouri Bill; and I said, 'Who is it?' and before I said that he kinder backed off and looked up, and it was Missouri Bill. Q. Backed off which way? A. Just kinder backed off north, and I took a match out to see who it was, and I said, 'Who's this?' and he said 'Me,' and as he said that I knew him. Just as he said, 'It's me,' John Boucher said over here: 'You are the son of a bitch that cut my hand. I have a notion to kill you. I will do it.' And as I turned to go Missouri Bill said, 'Be careful,' and Boucher fired the shot, and Hinton fell here. Q. Did you hear the other man,when you heard Boucher say, 'You are the son of a bitch that cut my hand,'-did you hear the other man say anything? A. When he says: You are the son of a bitch that cut my hand. I have a notion to kill you. I will do it,'-Hinton said: 'If you are going to do anything, do it. I have got to hunt a doctor, and get my head done up.' Q. When Hinton said, 'If you are going to do anything, do it. I have got to hunt a doctor, and get my head done up,'-he threw his hands up again, did he? A. Yes, sir. How long after he said that was it before Boucher fired? A. Well, he had just got the words out of his mouth. Just as he got the words out of his mouth Boucher fired, and he (Hinton) said, 'Oh! Oh!' and fell back. Q. How long did he live? A. Probably three minutes. He died just as fast as a man could die after being shot right down. Q. What did you find on his person? A. I found four five dollar bills in his right pocket. QHow were they done up? A. All squeezed up. Q. What else? A. Two twenty dollar bills in his pocket inside; in the right pocket, inside. Q. What else did you find? A. I found seven dollars and sixty-five cents in silver, I found in this pocket,-and a pocket knife. Q. What condition was the knife in, as to being open or shut? A. Shut. Q. What condition otherwise? A. It had some blood on it. Q. What else did you find? A. I think this comb and tooth brush. Q. Did you take charge of those things? A. Yes, sir; I think it was full charge. Q. What else did you find on his person? A. I believe that was all. Q. Did you make a thorough search of his person? A. Yes, sir; it was done for that purpose. Q. Was that all the money you found on his person? A. Yes, sir."

After the killing of Hinton by Boucher, Patterson, Standeford, Boucher, Harry Holland, and Ed Kinney were at the joint again under the Gladstone Hotel, and as to what then took place Ed Kinney testified as fol lows: "Patterson, Boucher, and Missouri Bin were in behind the table that was used for a bar, talking among themselves. They talked a little while there, and Boucher and Missouri Bill went out, saying they were going home, and went out the south door, and, I suppose, they went home. Harry Holland

and Patterson and myself stayed there. After they went out, Patterson says: 'Where's my gun? What did Boucher do with my gun?' And I said I had given it to Black upstairs. He turned around and went out, I suppose up into the office. He went out, and came back with the same gun, I think, that I gave Black, and kinder set up on the table that was used for a bar, and took the cartridges,-I think there were two or three cartridges, and threw them over into the slop bucket, and took the full cartridges and put them in his pants pocket, and shoved the gun down in here, [witness illustrating,] and we sat there talking,-merely talking,— and I think that the conversation came up in regard as to whether Patterson had seen Boucher kill Hinton, and I think that Patterson pictured the manner of the killing to me. I am not positive, but I think he did. He said that Boucher made him throw up his hands, stuck the gun up to him, and pumped it into him, and the son of a bitch bellowed like a calf.' We staid there some little time, and he suggested and advised Holland and me. He said, 'By God, we would all have to stay together, or every God damned one of us would go to the pen;' and he suggested that a quarrel arose about some wet horses, [stolen horses.]' We sat a little while there, and talked the matter over, and I didn't talk with anybody else about it until I got up on Fourth street. Question. Was it agreed there between Patterson and you and Holland to make up this story about the wet horses and stick to it, in order to shield Patterson and yourselves,-Boucher, Patterson, and yourselves? Answer. To shield Boucher, Patterson- Q. And you and Harry Holland. Was it purposely made up, for the purpose of shielding you? A. It was; yes, sir. It was talked over that we would all have to stand together, and simply to shield Boucher; put him in the best light we possibly could; and, of course, when we shielded Boucher, we shielded everybody else. Q. Have you had any conversation with Patterson since that time, with reference to your getting out of the country? A. Yes, sir; quite often. Q. What did he say about it? I mean Patterson, now the defendant. A. Why, the substance of all his conversation was that I knew too God damned much about the Boucher case.' Q. That was what he said to you? A. Yes, the substance. Q. What did he say about your going away? A. That I had better go to New York. Q. Did he say that more than once? A. Oh, yes. Q. I will ask you to state whether or not he ever gave you any money to leave, in order to keep you from being a witness here. A. Yes, sir; he did. Q. Where was that at, and how much money did he pay you? A. He gave me forty dollars in Wichita to go to New York with. Q. What did he say when he gave you the money? A. He just said: "Take this. Get out of the coun

try. Leave to-night.' I told him I would, and that I would be in Kansas City before morning."

The jury returned a verdict of guilty against the defendant of murder in the see ond degree. Thereupon the defendant fled a motion in arrest of judgment, which was overruled. He also filed a motion for a new trial, which was overruled. Subsequently the defendant was sentenced, upon the verdict of the jury, at hard labor and close confinement in the penitentiary of the state for a period of 12 years, and to pay the cost of the prose cution, taxed at $1,217.05. To the rulings, sentence, and judgment of the court the de fendant excepted, and appeals to this court.

Troup & Brown, Swartz & Weir, and J. W Ady, for appellant. John T. Little, Atty. Gen., G. W. Scott, W. P. Hackney, and J. C Pollock, for the State.

HORTON, C. J., (after stating the facts) 1. It is insisted that the record in this case does not show the defendant was furnished with a copy of the information, or waived it at any time before going to trial; also that the record fails to show the defendant was ever arraigned or pleaded to the informa tion, and therefore that there was a mistrial, and the judgment should be reversed. Upon the hearing a diminution of the record was suggested, and with the consent of this court the transcript has been amended so as to speak the truth. According to the transcript as corrected it appears that on April 2 1893, the defendant was personally present in court, and required to plead to the informa tion. It was read to him, and he pleaded not guilty. This was before the trial. The ree ord, therefore, shows his arraignment and plea. The record also shows that the jury was duly impaneled and sworn, and that the defendant was personally present in the court during the trial. An affidavit has been filed with the transcript, showing, as a matter of fact, that the clerk of the court made out and delivered to the counsel of defendant a copy of the information on the 6th day of April, 1893, several days before the trial. If, however, the affidavit be disregarded because not properly incorporated in the transcript, it is sufficient answer about the nondelivery of a copy of the information to call attention to section 158, Code Crim. Proc.. which provides: "If the defendant pleads and goes to trial, without objecting for the want of a copy of the information, the neg lect of the duty by the clerk will not be suffi cient ground to set aside the verdict." State v. Cassady, 12 Kan. 550. In State v. Wilson. 42 Kan. 587, 22 Pac. Rep. 622, the record did not show the defendant had been arraigned, or that he had announced himself ready for trial. In that case also the defendant made a motion to be discharged from custody be cause of the want of the service of a copy of the information, and because he had not been arraigned and required to plead.

2. It is next insisted that the information did not state facts constituting a public offense; that it was not direct and certain as regards the offense and parties attempted to be charged; and that the offense attempted to be charged was not clearly set forth in plain and concise language, and without repetition. Objection was taken to the information, not only by motions to quash and in arrest of judgment, but also by objecting to the introduction of any evidence that any person or persons other than the defendant or Standeford were guilty of the homicide complained of, and also by requesting instructions to the same effect. Upon the trial it was shown by the state at the time Peter Hinton was killed that John Boucher held the pistol in his own hand, and fired the shot which caused his death. The real contention is that neither the evidence introduced upon the part of the state nor the instructions given to the jury were applicable to or embraced the offense charged. It is urged that the guilt of Boucher should have been averred, and the act of the defendant in counseling him to commit the homicide should have been stated in the information. Counsel overlook or do not give sufficient force to section 421 of the crimes act, (section 115, Crim. Code,) and the decisions of this and other courts upon these sections. The first section reads: "Every person who shall be a principal in the second degree, in the commission of any offense, or who shall be an accessory to any murder or other felony, before the fact shall, upon conviction, be adjudged guilty of the offense in the same degree, and be punished in the same manner, as herein prescribed with respect to the principal in the first degree." The second section provides: "Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal." In State v. Cassady, supra, in referring to these sections, this court said: "The intention of the legislature in these sections is obvious. It authorizes the charging of an accessory before the fact, as principal." Section 10 of the bill of rights does not attempt to require that the particular connection an accused has with the offense charged shall be stated in the indictment or information. It does not attempt to indicate how much of detail or specification is essential to a criminal pleading. The legislature has not attempted to say that the crime committed shall not be charged; that the "nature and cause of the accusation" shall not be stated, but has simply declared what acts shall render one guilty of this crime. The one acting, the one present, aiding, and abetting, and the one absent, counseling, aiding, and abetting, are declared to be equally and alike guilty. Nor is this the introduction of a new or harsh rule. At common law, if two engaged in the commission of an ordinary fel

ony, and in furtherance of it one committed murder, both were declared equally guilty thereof. The common consent to do wrong rendered each responsible for all acts done in furtherance of the wrongful purpose. Under our statutes one indicted for an offense consisting of different degrees may be convicted of the degree charged, or, of any degree inferior thereto, or of an attempt to commit the offense. Crim. Code, § 121. Bishop in his work on Criminal Procedure (volume 2, 3d Ed., § 3) says: "So A. and B., if present, aiding and abetting, may be coLvicted, though C., a person not named in the indictment, committed the act." In State v. Jones, 7 Nev. 408, Lewis, C. J., observed "that the jury learned from the charge that it is always essential there be a principal in the crime, although under the statute of this state it is not necessary that he is convicted of the crime, or that the accessories be indicted as such; for it is expressly provided that they may be indicted and tried as principals." In Spies v. People, 122 Ill. 242, 12 N. E. Rep. 865, and 17 N. E. Rep. 898, the court stated: "Under our statute and the construction given to it by the decisions of this court the man who, 'not being present aiding, abetting, or assisting, hath advised, encouraged, aided, or abetted the perpetration of the crime,' may be considered as the principal, and may be punished as the principal. The indictment need not say anything about his having aided and abetted either a known or an unknown principal. It may simply charge him with having committed the murder as principal. Then, if, upon the trial, the proof shows that he aided, abetted, assisted, advised, or encouraged the perpe tration of the crime, the charge that he committed it as principal is established against him. It would make no difference whether the proof showed that he so aided and abetted, etc., a known principal or an unknown principal." State v. Mosley, 31 Kan. 355, 2 Pac. Rep. 782; State v. Brown, 21 Kan. 50; People v. Outeveras, 48 Cal. 19; Baxter v. People, 3 Gilman, 381; Dempsey v. People, 47 Ill. 323; State v. Orrick, (Mo. Sup.) 17 S. W. Rep. 176; State v. Fredericks, 85 Mo. 150; State v. Anderson, 89 Mo. 333, 1 S. W. Rep. 135; State v. Rucker, 93 Mo. 89, 5 S. W. Rep. 609.

3. It is also insisted that the trial court erred in admitting the statements of Boucher, made to Kinney, after the killing was over. --not in the presence of the defendant,--"that he had killed Hinton," and, "You take that gun, and give it to Patterson." Under the authority of State v. Bogue, 51 Kan. - 34 Pac. Rep. 410, it may be conceded that the first statement was inadmissible. The question, therefore, arises, was it material or prejudicial? The record is full of evidence that Boucher killed Hinton. One of the witnesses for the defendant stated that "Boucher killed Hinton," and the defendant offered