ject is not required. The other requests to charge do not demand a special consideration. After a careful examination of the various questions raised, we are of the opinion that no error was committed upon the trial and that the judgment of conviction should be affirmed. RUGER, C. J., and ANDREWS, J., concur. OMISSION-STANDING BY WHEN CRIME IS ATTEMPTED BY PEOPLE V. WOODWARD. [45 Cal. 293.] In the Supreme Court of California, January, 1873. A Person Who Stands by when an attempt is made by others to commit a rape, but who does no act to aid, assist, or abet its commission is not guilty of an attempt to com. mit a rape. APPEAL from County Court of Shasta County. The facts are stated in the opinion. Chas. A. Garter, for appellant. The Attorney-General (represented by G. A. Blanchard), for respondent. BY THE COURT. The defendant was convicted of the crime of an attempt to commit a rape on the person of a child under the age of ten years; and has appealed from the judgment and from an order denying his motion for a new trial. There was testimony tending to prove that several boys, one of whom was over the age of fourteen and the others under that age, attempted to commit rape on the person of a child, and the defendant, who is of the age of seventeen years, stood by and aided and encouraged the other boys in the accomplishment of their purpose. On the other hand, the defendant, who testified as a witness in his own behalf, though admitting that he was present, denied that he in any wise aided or encouraged the other boys in their unlawful design. The counsel for the defence asked the court to charge the jury as follows: : "If you are satisfied from the evidence that the defendant stood by at the time the offense is alleged to have been committed, but did no act to aid, assist, or abet the same, you should find the defendant not guilty." The court refused to give the charge, and this ruling is assigned as We think the charge was improperly refused. If the defendant error. "did no act to aid, assist, or abet" the perpetration of the crime, he is guilty of no violation of law from the mere fact that he was present. His presence, if unexplained, would be a circumstance tending to show his complicity in the transaction. But it was for the jury to decide from all the facts proved, whether he aided, assisted, or abetted the perpetration of the offense; and if they were satisfied that though present, he did not in fact aid, assist, or abet the perpetrators, it would have been their duty to acquit him. The defendant was entitled to have the jury instructed to the effect. Judgment reversed and cause remanded for a new trial. Remittitur to issue forthwith. OMISSION TO PREVENT CRIME-STANDING BY WHEN MURDER CONNAUGHTY v. STATE. [1 Wis. 159; 60 Am. Dec. 370.] In the Supreme Court of Wisconsin, June, 1883. 1. One Present at the Commission of a crime who having means and ability to prevent its perpetration stands by without attempting to interfere, is not guilty of the crime, either as a principal or as an accessory. 2. Standing by when Murder Committed. Before a man's door, he standing and looking on A. beat B. to death. On an indictment against the man for the murder of B., the jury were instructed that if he was standing by within a few feet of the assailant, and did not interfere or attempt by word or act to arrest the violence, it was a very strong circumstance against him and might alone satisfy the jury that he advised or procured the attack. Held, error. Indictment for murder of John Gullen, upon which the plaintiff in error and his co-defendant were tried, found guilty in the first degree and sentenced to death. Connaughty sued out a writ of The opinion states the case. error. James A. Mallory, for the plaintiff in error. E. Estabrook, Attorney-General, for the State. By court, CRAWFORD, J. At the May term, A. D., 1852, of the Circuit Court of the county of Milwaukee, the plaintiff in error, James Connaughty, and one Patrick McDonald, were tried on an indictment for the willful murder of John Gullen. The jury having found and returned a verdict of "guilty of murder in the first degree" against both defendants, on a subsequent day in the same term, the court sentenced each of the defendants to suffer the punishment of death. A bill of exceptions on behalf of the defendant Connaughty was sealed and filed, and the case comes before us by a writ of error allowed by the chief justice. We can not commend the brevity manifested in this bill of exceptions. In a case of so great moment as this, when the life of a fellow-being is at stake, it is important as well for the due administration of justice as for the protection of life, that the whole facts and circumstances of the case should be set forth by the exceptions. Enough, however, appears in this bill to enable us to dispose of the case. It was given in evidence on the trial on the part of the prosecution that "the night of the murder was a gloomy, nasty night; witness could not tell how many were on the ground till he had looked a while; thought first it was Connaughty and wife quarreling, till he heard Connaughty coughing in his own house. Witness spoke to McDonald and he got off the man and came immediately and went toward Milwaukee street. Did not see him afterwards; can't say whether the man had a cap or a coat on; it was a gloomy night at the time McDonald got off the man heard Connaughty coughing in his own house did not see him out that night." This evidence was given by Charles Mallen, a witness sworn for the prosecution. On the part of the defendant, Connaughty, the following evidence was given: "Connaughty did not go out that night; at the time of the row Connaughty and wife went to the door of the house in their night clothes and Connaughty told McDonald to go into the house and not be fighting. Connaughty had on no clothes but his shirt; stood in the door leaning against the door-post a few minutes and then went to bed, and did not get up till morning." This is all of the evidence contained in the bill of exceptions. We may here remark that the indictment contained three counts, in the first and third of which McDonald is charged with having inflicted the injuries which caused the death of Gullen and that the wife of McDonald and the plaintiff in error, Connaughty, were present in aiding, abetting and assisting in the murder; and the second count charges Connaughty with having cast, thrown and pushed Gullen into a certain river, thereby causing his death by drowning; and that McDonald and wife were present, aiding, assisting and abetting Connaughty in committing the offence. The charge of the court was as follows: "With respect to one of the prisoners, the testimony is chiefly direct and positive; with respect to the other, the testimony is chiefly circumstantial. The proof shows beyond question that on Sunday night, the fifteenth of June, the prisoner McDonald was engaged in violently beating John Gullen and was assisted by his wife, both in his own house and outside of it, very near to the door of Connaughty, and that Connaughty at the time was standing in his own door. saying and doing nothing. "Again, it is not only the person striking the fatal blow or blows which caused the death who is guilty; any person who shall counsel, hire, or otherwise procure a murder to be committed is, by the statute, guilty equally with the principal offender. No man can innocently stand by and see a murder committed without attempting to prevent it; great bodily danger or great fear might excuse a person from interfering and it might be a satisfactory explanation that the bystander did not know the deadly purposes or did not understand the deadly effect of the blows; but ordinarily a bystander should be presumed to understand the effect of great violence as well as the person who inflicted it. You will apply these general rules and principles to the case of the prisoner Connaughty. "The evidence is before you, and you will judge what is proved and what is its weight; this is a general remark applicable to the whole case. If the proof shows that blows were inflicted upon Gullen while Connaughty was standing by, within a few feet of the assailants, and if he did not interfere or attempt by word or act to arrest the violence, it is a very strong circumstance against him; it may of itself satisfy you of his advising or procuring the blows to be inflicted, and it may be taken in connection with other evidence, with his acts and declarations afterwards, and with all the other facts tending to show his connection with the murder, and thus all the evidence together may satisfy you of his participation in the crime." It apears also that the counsel for the prisoner Connaughty, requested the court to charge the jury, "that there must also be a participation in the act proved, for although a man may be present while a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be an accessory aiding and abetting, merely because he did not endeavor to prevent the felony or apprehend the felon; " which instruction was refused, the court remarking that "such was not the necessary conclusion of the law," and referring to the written charge. What this written charge was, if it were not the charge we find in the bill of exceptions, and which we have above recited, we are not informed. This is the whole case made out and submitted to us and from it we conclude that Connaughty was convicted as an aider and abettor of McDonald, and therefore a principal in the second degree. "When two or more are to be brought to justice for one and the same felony they are considered in the light either, (1) of principals in the first degree; (2) principals in the second degree; accessories before the fact, or accessories after the fact; and again, (3) principals in the second degree are those who were present, aiding and abetting at the commission of the fact." 1 This author in another place says: "In order to make an abettor to a murder or a manslaughter a pricipal in the felony, he must be present aiding and abetting the fact committed." 2 "A man may be principal in an offense in two degrees: a principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree he who is present, aiding and abetting the fact to be done, which presence need not always be an actual standing by within sight or hearing of the fact, but there may be also a constructive presence, as when one commits a robbery or murder and another keeps watch or guard at a convenient distance."' 3 From these authorities, as well as from all the other writers on criminal law, it is apparent that a presence, either actual or constructive, when coupled with an aiding or abetting, a counseling, inciting, hiring,or in any manner assisting in the commission of a felony, will make a person a principal in the offense; and our statute,4 declares that " every person who shall be aiding in the commission of any offense which shall be a felony" shall be punished in like manner with the principal offender. We find this principle of law very correctly set forth in the charge of the court below; but there are other portions of the charge having a relation to this rule of law which we can not approve of or affirm as the law of the land. "No man can innocently stand by and see a murder committed without attempting to prevent it. • Ordinarily a bystander should be presumed to understand the effect of great violence as well as the prisoner (person) who inflicts it. If the proof shows that the blows were inflicted upon Gullen while Connaughty was standing by, within a few feet of the assailants, and if he did not interfere or attempt by word or act to arrest the violence against him, it may of itself satisfy you of his advising or procuring the blows to be inflicted." This is the language of the court in its charge to the jury, but it is not in accordance with the law as we understand it. The promptings of humanity as well as the duty which one man owes to another and to the laws nnder which he lives, demand that when a person sees great bodily injury being inflicted upon an individual, and the looker on has a means or ability to prevent the injury, he shall use such means, and if he do not but idly stand by without interfering to prevent the commission of the crime, the law will not hold him in any degree guilty of the particular crime committed, although he is by no means guiltless in the eye of the law. 11 Russ. on Cr., ch. 2, p. 29. 2 Id. 627. 34 Bla. Com. 33; Fost. 350; 1 Hale P. C. 615. 4 ch. 141, sec. 1. |