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present—sometimes called principals in the second degree. And although in this second part of the count those seventeen defendants are charged as being present aiding and abetting, the murder is charged in the first part as having been committed by Key. The whole charge is in law, one count against them all, Key included, as joint offenders in the same crime, and if you find that any or all of them were present, and wilfully, feloniously and with malice aforethought, aided, abetted or assisted in killing Mahon, then those who were so present are guilty of murder, and may be convicted of murder under the first count.
"By being present is not meant an actual bodily presence—so near that the party might have actually taken a hand in the killing of Mahon—but is meant also any who were in the neighborhood of the place where the crime was committed, performing some part in an unlawful undertaking expected to result in great bodily harm or death to Mahon, such as preventing his escape, keeping watch to prevent escape or to prevent others from interfering to protect him, disabling, killing or wounding or terrorizing those who might interfere to protect him, or doing some such act in furtherance of a common design to put Mahon to death or to do him great bodily harm. Persons near enough to perform such acts, and in that manner to aid, abet and assist, are said to be constructively present.
"In determining whether or not these defendants, or any of them, have been proven to have been either actually or constructively present, and whether they have been proven to have aided or abetted or assisted, you are to find from the testimony where they were when Mahon was killed, and what they were doing at that time and immediately preceding that time, and what was their design and intention, as indicated by their acts and words in the occurrence which preceded the killing of Mahon. If from the evidence you find that the white officers were driven from the superintendent's house, and were attacked and disarmed and some of them killed and wounded, with the purpose and
