Epitomized Opinion

Sudano and Lombardi were indicted jointly fox-murder in the second degree for the killirig of Jim Carmardo. One Joe Conti had seen Lombardi’s brother having illicit relations with Jim Caxmardo’s wife. Sudano and Lombax-di met Joe Conti, accused him of talking too much about Carmardo'’s wife and when Conti turned away from them, emptied their revolvers at him without hitting him, and then ran after him. Sudano overtook Conti and Íegan striking him. Jim Carmardo then came and eized Conti and began striking him. Andrew Rera, Sr., then appeared and firedi at Conti, but the bullet struck Jim Carmardo, resulting in Carmardo’s death. Andrew Rera, Sr., then drew a knife and stabbed Conti. Sudano who was still holding and striking Conti, ca’led to Andrew Rera, Jr., who had approached to attack Conti. Whereupon Rera, Jx*., fired at Conti, the bullet striking him on the jaw. Conti fell but was not killed. Lombardi, who had run after Conti a little way after shooting at him, had not accompanied Sudano further-, but had turned and run away. Both Sudano and Lombardi were convicted of second degree murder. Both prosecuted error to this court. Held:

1.Evidence concerning the illicit relations of Lombardi’s brother with Carmardo’s wife was properly admitted because it showed a motive for the animosity against Joe Conti and reflected upon the probability of a conspiracy to kill him.

2.Although the evidence admitted was competent, thex-e was not sufficient evidence to establish beyond a reasonable doubt a prior conspiracy between the assailants to kill Joe Conti. .

3.Although Sudano was not a conspirator, the jux-y was justified in finding that he ■ did do some overt act to incite and encourage the homicide and ihat he was guilty as an aider and abettor of murder in the second degree.'

4.The evidence did not establish beyond a reasonable doubt that Lombardi was present and did any act to encourage and incite Andrew Rera, Sr., to shoot.

Judgment aga’nst Sudano confirmed. Judgment against Lombardi reversed.

(dissenting- in Sudano case).

1. The record does not disclose a conspiracy. Therefore the evidence of misconduct of Carmardo’s .vii'e was incompetent and it was prejudicial.

2. The record does not show that Sudano did any ,-v. 11 act w:th a view to inciting Andrew Rera, Sr., o participate in the affray.