Keith, P.,
delivered the opinion of the court.
Jack, Taylor, and Henry Horton were indicted in the County Court of Russell county for the murder of William Horton— Jack Horton being charged with the actual commission of the crime, and Taylor and Henry Horton as 'being present aiding, abetting and assisting him in its perpetration. Upon their arraignment Taylor and Henry Horton demurred to the indictment, and, the demurrer being overruled, they pleaded “ not guilty,” and upon their trial the jury rendered a verdict finding Henry Horton guilty of murder in the second degree and fixing his term of imprisonment in the penitentiary at five years, and Taylor Horton guilty of voluntary manslaughter, and ascertaining liis'term of confinement in the penitentiary at one year.
The demurrer was properly overruled. See Hatchett v. Commonwealth, 75 Va. 931; Kemp v. Commonwealth, 80 Va. 450.
After the evidence had been introduced numerous instructions were asked upon the part of the Commonwealth, all of which were given. The prisoner excepted to Hos. 8, 10J, and 13, which are as follows:
“Ho. 8. The court instructs the jury that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie willful and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.”
“10-J. The court instructs the jury that in considering whether or not Taylor Horton and Henry Horton are principals in the second degree in this case, aiding, abetting, counselling, advising, or consenting to said killing of William Horton, they may consider all the acts and declarations of the said Taylor Horton and Henry Horton at the time of the said killing both before and after the killing of the said William T. Horton, and if they believe, from the whole evidence, that they were so aiding and abetting in said crime, then they are guilty in this case.”
[862]*862“13. The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury, and the law is that, where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of evidence as equally balanced. The jury have the right to determine from the appearance of witnesses on the stand, their manner of testifying, and their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are more worthy of credit and to give credit accordingly.”
The prisoner also asked instructions, all of which were given except Hos. 10, 11, and 12, which are as follows:
“Ho. 10. The court instructs the jury that upon the trial of a criminal case, if a reasonable doubt of any fact necessary to convict the prisoner is raised in the mind of the jury by the evidence itself, or by the ingenuity of the counsel, upon any hypothesis consistent therewith, that douibt is decisive of the prisoner’s acquittal.
The verdict of not guilty means no more than this: That the guilt of the accused has not been demonstrated in the precise, specific and narrow form prescribed by law. The evidence to convict the prisoner must not merely be beyond all reasonable doubt, consistent with the hypothesis of his guilt, it must also be beyond all reasonable doubt inconsistent with any hypothesis of innocence that can be reasonably drawn therefrom.”
“Ho. 11. The court tells the jury that if they shordd believe, from the evidence, that Taylor Horton and Henry Horton participated in any way, whether by word or act, in a difficulty with Jack Horton and William T. Horton, deceased, yet if, from the whole evidence, the jury should have a reasonable doubt in their minds as to whether or not such participation was for the purpose of aiding and abetting the said Jack Horton in the killing ■of said William T. Horton, if the jury should believe that the said Jack Horton did kill the said W. T. Horton, then the court [863]*863further tells the jury that they cannot find the said Taylor Horton and Henry Horton guilty of aiding and abetting the said Jack Horton in the said killing.”
“Ho. 12. The court instructs the jury that to constitute an aider and abettor, it is essential that there should be: First, presence, actual or constructive; second, participation in the •crime, but the court further tells the jury that any encouragement or act of assistance is a participation in the crime.”
Ho. 12 was given, but with an addition made to it by the court and objected to by the prisoner.
We see no objection to instruction 8 given on behalf of the Commonwealth. It was necessary, or at least proper, to define murder in the first degree. That offence was included in the indictment found againts Jack Horton, and is therefore one of the degrees of homicide with which Taylor Horton is charged as having aided and abetted him in committing. The facts and circumstances which distinguish the liability of principals in the first and second degree are well stated in instruction Ho. 9, which was given without exception, and is as follows:
“ Ho. 9. The court instructs the jury that principals in the first degree in every murder or other crime are those who are 'the actors, or actual perpetrators of the crime—those who are the immediate perpetrators of the act. That principals in the second degree are those who did not with their own hands commit the act, but were present, aiding and abetting it. It is not necessary in order to make a person principal in the second degree that he be actually present when the crime was committed, or that he actually participated in the commission, of the crime. The test as to whether or not he is a principal in the second degree is, was he encouraging, inciting, or in some manner offering aid or consent to the crime? All persons present lending countenance, or otherwise aiding, while another does the act, are principals in the second degree, and liable to the same pun[864]*864ishment as if they were principals in the first degree and actually committed the crime.”
Ho. 10§ correctly states the law. Taylor and Henry Horton were jointly indicted and tried a!s principals in the second degree for aiding and abetting Jack Horton in the murder of William T. Horton, and in ascertaining their guilt or innocence, it was entirely proper to consider all the evidence in the case, including their acts and declarations “at the time of the said killing, both before and after.”
We see no objection to the law as stated in instruction Ho. 13. The peculiar value of a trial by jury rests in large degree upon the considerations clearly and forcibly stated in that instruction.
Ho. 10, asked for by the prisoner, was, we think, properly refused. The jury had already been correctly instructed as to what constitutes a reasonable doubt.
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Keith, P.,
delivered the opinion of the court.
Jack, Taylor, and Henry Horton were indicted in the County Court of Russell county for the murder of William Horton— Jack Horton being charged with the actual commission of the crime, and Taylor and Henry Horton as 'being present aiding, abetting and assisting him in its perpetration. Upon their arraignment Taylor and Henry Horton demurred to the indictment, and, the demurrer being overruled, they pleaded “ not guilty,” and upon their trial the jury rendered a verdict finding Henry Horton guilty of murder in the second degree and fixing his term of imprisonment in the penitentiary at five years, and Taylor Horton guilty of voluntary manslaughter, and ascertaining liis'term of confinement in the penitentiary at one year.
The demurrer was properly overruled. See Hatchett v. Commonwealth, 75 Va. 931; Kemp v. Commonwealth, 80 Va. 450.
After the evidence had been introduced numerous instructions were asked upon the part of the Commonwealth, all of which were given. The prisoner excepted to Hos. 8, 10J, and 13, which are as follows:
“Ho. 8. The court instructs the jury that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie willful and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.”
“10-J. The court instructs the jury that in considering whether or not Taylor Horton and Henry Horton are principals in the second degree in this case, aiding, abetting, counselling, advising, or consenting to said killing of William Horton, they may consider all the acts and declarations of the said Taylor Horton and Henry Horton at the time of the said killing both before and after the killing of the said William T. Horton, and if they believe, from the whole evidence, that they were so aiding and abetting in said crime, then they are guilty in this case.”
[862]*862“13. The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury, and the law is that, where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of evidence as equally balanced. The jury have the right to determine from the appearance of witnesses on the stand, their manner of testifying, and their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are more worthy of credit and to give credit accordingly.”
The prisoner also asked instructions, all of which were given except Hos. 10, 11, and 12, which are as follows:
“Ho. 10. The court instructs the jury that upon the trial of a criminal case, if a reasonable doubt of any fact necessary to convict the prisoner is raised in the mind of the jury by the evidence itself, or by the ingenuity of the counsel, upon any hypothesis consistent therewith, that douibt is decisive of the prisoner’s acquittal.
The verdict of not guilty means no more than this: That the guilt of the accused has not been demonstrated in the precise, specific and narrow form prescribed by law. The evidence to convict the prisoner must not merely be beyond all reasonable doubt, consistent with the hypothesis of his guilt, it must also be beyond all reasonable doubt inconsistent with any hypothesis of innocence that can be reasonably drawn therefrom.”
“Ho. 11. The court tells the jury that if they shordd believe, from the evidence, that Taylor Horton and Henry Horton participated in any way, whether by word or act, in a difficulty with Jack Horton and William T. Horton, deceased, yet if, from the whole evidence, the jury should have a reasonable doubt in their minds as to whether or not such participation was for the purpose of aiding and abetting the said Jack Horton in the killing ■of said William T. Horton, if the jury should believe that the said Jack Horton did kill the said W. T. Horton, then the court [863]*863further tells the jury that they cannot find the said Taylor Horton and Henry Horton guilty of aiding and abetting the said Jack Horton in the said killing.”
“Ho. 12. The court instructs the jury that to constitute an aider and abettor, it is essential that there should be: First, presence, actual or constructive; second, participation in the •crime, but the court further tells the jury that any encouragement or act of assistance is a participation in the crime.”
Ho. 12 was given, but with an addition made to it by the court and objected to by the prisoner.
We see no objection to instruction 8 given on behalf of the Commonwealth. It was necessary, or at least proper, to define murder in the first degree. That offence was included in the indictment found againts Jack Horton, and is therefore one of the degrees of homicide with which Taylor Horton is charged as having aided and abetted him in committing. The facts and circumstances which distinguish the liability of principals in the first and second degree are well stated in instruction Ho. 9, which was given without exception, and is as follows:
“ Ho. 9. The court instructs the jury that principals in the first degree in every murder or other crime are those who are 'the actors, or actual perpetrators of the crime—those who are the immediate perpetrators of the act. That principals in the second degree are those who did not with their own hands commit the act, but were present, aiding and abetting it. It is not necessary in order to make a person principal in the second degree that he be actually present when the crime was committed, or that he actually participated in the commission, of the crime. The test as to whether or not he is a principal in the second degree is, was he encouraging, inciting, or in some manner offering aid or consent to the crime? All persons present lending countenance, or otherwise aiding, while another does the act, are principals in the second degree, and liable to the same pun[864]*864ishment as if they were principals in the first degree and actually committed the crime.”
Ho. 10§ correctly states the law. Taylor and Henry Horton were jointly indicted and tried a!s principals in the second degree for aiding and abetting Jack Horton in the murder of William T. Horton, and in ascertaining their guilt or innocence, it was entirely proper to consider all the evidence in the case, including their acts and declarations “at the time of the said killing, both before and after.”
We see no objection to the law as stated in instruction Ho. 13. The peculiar value of a trial by jury rests in large degree upon the considerations clearly and forcibly stated in that instruction.
Ho. 10, asked for by the prisoner, was, we think, properly refused. The jury had already been correctly instructed as to what constitutes a reasonable doubt. The instruction asked for tells the jury “that if a reasonable doubt of any fact necessary to convict the prisoner is raised in the mind of the jury by the evidence itself, or by the ingenuity of counsel, upon any hypothesis consistent therewith, that doubt is decisive in favor of the prisoner’s acquittal.” If the reasonable doubt here referred to is such as is left upon the jury by a candid consideration of the evidence, then it was unnecessary, because that proposition had already been sufficiently covered by previous instructions. If it was designed to impress upon the jury the idea that it was their duty to acquit as a result of the douibt created in their minds by the ingenuity of counsel and not arising upon a candid 'and impartial investigation of the evidence, then it was erroneous. It certainly tended to confuse and mislead, and, in any aspect of it, was properly rejected. It is true that such an instruction was given in Hatchett v. Commonwealth, supra, but in that case it was given at the request of the prisoner. • It was not, therefore, the subject of an exception, and its sufficiency was not questioned in this court.
[865]*865Ho. 11, we think, was properly rejected. Jack Horton was, as we have seen, indicted for murder, and Taylor Horton as aiding and abetting him in the perpetration of that crime. If, therefore, Jack Horton was guilty of murder and Taylor Horton was present, aiding, abetting and consenting to what he did, he is guilty of the offence with which he is charged. The law is correctly stated upon this point in instruction Ho. 6, given at the instance of the prisoner, and is as follows:
“ The coux*t further instructs the jury that to-' constitute an aider and abettor it is essential that the aider and abettor should share the criminal intent of the principal or party who committed the offence. The court further instructs the jury that wherever a reasonable doubt exists as to the person’s intention in interfering in the struggle or fight between two other persons, he cannot be found guilty as an aider and abettor, and if the jury shall believe from the evidence in this case that a fight arose or occurred between Jack and W. T. Horton, in which the said Jack Horton was the aggressor, and that the said Jack Horton struck the said "W. T. Horton two 'blows upon the head which resulted in his death, then the court tells the jury that unless they shall further believe, beyond all reasonable doubt, thait Taylor Horton and Henry Horton interferred or took part in said difficulty, and shared in the criminal intent of the said Jack Horton, they cannot find the said Taylor Horton and Henry Horton guilty as aiders and abettors in the crime.”
The addition to Ho. 12 was, we think, properly made, especially in view of the fact that the prisoner had already asked for and obtained instruction Ho. 4, which is absolutely identical with Ho. 12 as amended and given by the court.
■The prisoner also moved the court to set aside the verdict. The verdict is sufficient in foxux. The defendant was charged as an accessoxy befox’e the fact, or principal in the second degree, and he is by the verdict found guilty as charged in the indict[866]*866ment. See Kemp v. Commonwealth, and Hatchett v. Commonwealth, supra.
Nor did the court err in refusing to set aside the verdict as contrary to the evidence.
Without undertaking to- discuss the evidence in detail, it. is sufficient to say that on Sunday morning, the 29th of July, 1900, William T. Horton, commonly known as “ Bud” Horton, Perry Short and his wife, and one or two others, were passing through the premises of Taylor Horton, on their way to church. W. T. Horton, it seems, had been forbidden to come upon the premises of Taylor Horton, and when he was recognized, Jack Horton joined the party, and a controversy arose which resulted in an assault upon W. T. Horton, who was struck two blows upon the head by- Jack Horton with a piece of paling, which caused his death on the following Tuesday.
It appears' from the testimony of Mary Doherty that Taylor Horton, some months before this time, said that “he would get * Bud’ yet (meaning the deceased); all he wanted was to catch him on his premises.”
It appears from the testimony of several witnesses that Taylor Horton was present and participating when the fatal blow was struck, and the dying declaration of “ Bud” Horton corroborates this view. When asked who killed him, his reply was: “ Taylor Horton and his boys.”
There is, as is usually the case where a number of persons testify to a transaction in which they have participated, a diversity of statement among them; nor is this at all inconsistent with the veracity of the witnesses. No one, perhaps, sees the whole of what is passing before him. Each testifies from his own point of view, which differs in a greater or less degree from that of others, but if their statements are contradictory and irreconcilable, then the jury -have, as we have seen in discussing the instructions, “the right to determine from tire appearance of the witnesses on the stand, their manner of testifying, and their [867]*867•apparent candor and fairness, their apparent intelligence or lack •of intelligence, and from all the other surrounding circumstances which are more worthy of credit.”
The only question for us to‘ consider is, whether upon the whole case the evidence is sufficient to sustain the verdict of the jury, and being of opinión that it is, the judgment must be affirmed.
Affirmed.