12
design that Mahon, or Mahon together with others, should be overpowered and wounded or killed, and that the persons charged took part in carrying out that purpose, and at the time of the actual killing were so situated that they could be of assistance in carrying out that purpose, and did so assist, then these are facts from which you may find that any of the defendants who so assisted, with knowledge of such common design, are guilty as charged in the first count.
"By the second count Key is charged with the murder of Mahon, and the other seventeen defendants are charged with being accessories—that is to say, persons who, without being either actually or constructively present, did, before the alleged murder, feloniously, wilfully, knowingly and maliciously aid, abet, cause, procure, command and counsel Key to do the murder.
"In order to find any conviction under this count you must first determine whether, under the instructions hereinbefore given to you, with regard to the crime of murder and of malice aforethought, Key is guilty of the murder of Mahon, and whether the jurisdictional facts alleged in the count have been proved. For if Key is not guilty of murder, none of the other defendants can be found guilty of being accessories under this second count. If you find Key guilty of murder as charged, then you are to consider the evidence affecting those of the seventeen other defendants not found by you to have been either actually or constructively present assisting in the murder.
"If you find from the evidence that any of the seventeen defendants charged on the second count as accessories who were not present assisting, did, before the killing, maliciously counsel, incite and abet Key to murder Mahon, then you may find them guilty under the second count. In determining whether the defendants, or any of them, have been proven guilty under this count, you may consider the nature and purpose of any enterprise in which you may find any of the defendants engaged on the day of the murder, or before that day, and what was said
