150 Slide – American State Trials 1918 Volume X Leo Frank Document

118 X. AMERICAN STATE TRIALS.

persons confederate and engage in a common design, the act
of one is the act of all.’’ If a blow is given, the blow of one
ia the blow of all. This law has been recognized by our Su-
preme Court on several occasions, and recently in the case
of State v. Jennings, reported in 18 Mo. 435.

January 31.

Mr, Bay. At the adjournment of the court last evening,
gentlemen of the jury, I had closed my remarks with respect
to the first proposition contended for by the counsel for the
defense. I will now call your attention to the second ground
of defense, which is, ‘‘That if the evidence does estab-
lish the fact that the prisoner killed Gordon, it also shows
that he did it in an attempt toe commit a felony, and aa he is
not so charged in the indictment, he cannot be convicted of
murder in the first degree.”

The law upon which this indictment was framed will be
found in the first section of article 2 of our statute relating
to crimes and punishments and is as follows: Sec. 1. Every
murder which shall be committed by means of poison, or by
lying in wait, or by any other kind of wilful, deliberate and
premeditated killing, or which shall be committed in the per-
petration or attempt to perpetrate any arson, rape, robbery,
burglary or other felony, shall be deemed murder in the
first degree.’”

The counsel certainly did not pay us a very high compli-
ment when he remarked in his opening speech, ‘‘that the
State would contend that this was a murder committed in
the perpetration of a felony.’’ Such an idea never entered my
head, and I am certain it was not contemplated by my col-
leagues, and if the counsel is really serious in his constrac-
tion of the law, he is entitled to the credit of having discov-
ered a rule of interpretation that has hitherto entirely es-
eaped the observation of the courts of the country. The stat-
ute intended to place three classes of homicide in the first
degree: ist. Murder committed by means of poison or by
lying in wait. 2nd. Every other kind of wilful, deliberate
and premeditated killing. 3rd. Every murder which shall
be committed in the perpetration or attempt to perpetrate