delivered the opinion of the Court:

It may be regarded as a well settled principle of law, that a man will be held guilty of murder or manslaughter, who, in the attempt to kill one person, by mistake kills a third person, although there is no intent or design to kill such third person. So, also, where a number of persons conspire together to do an unlawful act, and in the prosecution of the common design a person is killed, all will be guilty of murder. Wharton (vol. 2, sec. 998,) says: “If the unlawful act was a trespass, the murder, to affect all, must be done in the prosecution of the design. If the unlawful act be a felony, it will be murder in all, although the death happened collaterally, or besides the principal design.” Russell on Crimes (vol. 1, page 540,) says: “Where divers persons resolve, generally, to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, as, by committing a violent disseizin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the sheriff’s posse, they must, when they engage in such bold disturbances of the public peace, at their peril, abide the event of their actions, and, therefore, if in doing any of these acts they happen to kill a man, they are all guilty of murder.” In 1 Hale’s Pleas of the Crown, 441, the doctrine is stated thus: “If divers persons come in one company to do an unlawful thing, as, to kill, rob or beat a man, or commit a riot, or to do any other trespass, and one of them, in doing thereof, kill a man, this may be adjudged murder in them all that are present of that party abetting him and consenting to the act, or ready to aid him, although they did but look on.”

No person can be held responsible for a homicide unless the act was either actually or constructively committed by him; and, in order to be his act, it must be committed by his hand, or by some one acting in concert with him, or in furtherance of a common design or purpose. Where the criminal liability arises from the act of another, it must appear that the act was done in furtherance of the common design, or in prosecution of the common purpose for which the parties were assembled or combined together, otherwise a person might be convicted of a crime to the commission of which he never assented, which could not he done upon any principle of justice. The two defendants William and Franklin Butler, in making an assault upon Conrey, were guilty of a breach of the peace, and if, while engaged in the encounter, either one had fired the shot which killed the deceased, both would have been guilty of the crime, although they had no design or intention to injure or kill the deceased. That, however, is not the question presented by this record. Here, under the instructions of the court, the two defendants are held responsible for the shooting done by Conrey, although there was no concert of action whatever between him and them. There was no common design or purpose existing between the two defendants and Conrey. They had not assembled or come together for the commission of any unlawful act. They were enemies—belonged to opposite factions ; and we know of no principle upon which it can be held that the defendants are liable for an act of Conrey. It is true, the, defendants assaulted Conrey, and struck him with their fists; but his life was not in peril, nor was he in danger of suffering great bodily harm. There was, therefore, nothing in the character of the assault;which could justify a prudent man in resorting to a revolver. But suppose there was, we know of no well settled rule of law which would hold the defendants liable for the acts of Conrey. They would be responsible for what they did themselves, and such consequences as might naturally flow from their acts and conduct; but they never advised, encouraged or assented to the acts of Conrey, nor did they combine with him to do any unlawful act, nor did they, in any manner, assent to anything he did, and hence they could not be responsible for his conduct towards the deceased.

It would be a strange rule of law, indeed, to hold a man liable for a crime which he did not commit, which he did not advise, and which was committed without his knowledge or assent, express or implied; and yet, if the conviction in this ease is to be sustained, it can only be done by the sanction of such a doctrine. Commonwealth v. Campbell, 7 Allen, 541, is a case in point. It was there held, that a rioter can not be held guilty of murder or manslaughter by reason of the accidental killing of an innocent person by those who are engaged in suppressing the riot. The rule announced in the case is approved by Bishop on Criminal Law, vol. 1, sec. 637.

The judgment will be reversed and the cause remanded.

Judgment reversed.