See also § 66-9-23, A.C.L.A. 1949. State v. Roberts, 1959, 85 Ariz. 252, 336 P.2d 151; Lyons v. Commonwealth, 1926, 216 Ky. 202, 287 S.W. 534, 536; State v. Hoffman, 1930, 199 N.C. 328, 154 S.E. 314, 316; United States v. Anthony, D.C.M.D.Pa. 1956, 145 F. Supp. 323, 337, 338. The basic question, then, for this court to decide is whether the evidence warrants the verdict that the appellant, as an aider and abettor, wilfully cut Leonard Dunham, Jr., about the face with a broken beer bottle, with intent to wound the latter.

Also, we find that the testimony of the witness, Virginia Collins, as to the statement made by Polly Arnett shortly before her death, was competent, as the evidence shows that Polly made the statement to the witness under such circumstances as to make it competent as a dying declaration. Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534; Thomas v. Commonwealth, 195 Ky. 623, 243 S.W. 1; McHargue v. Commonwealth, 23 S.W. 349, 15 Ky.Law Rep. 323, 324. The competent evidence that appellant claims he was deprived of consists of threats made against him by the deceased.

' " Defendant contends that as the evidence was conflicting as to whether or not he fired until after Long had killed Marvin and as the evidence showed that when he did fire, he shot at Scott and not at deceased, the court should have directed the jury to acquit him of aiding and abetting Long in the homicide, citing Lyons v. Com., 216 Ky. 202, 287 S.W. 534. The Lyons case holds that for one to be an aider and abettor it is necessary that he should aid either at the time or before the commission of the offense by the principal, or that he had been guilty of some overt act or some act of encouragement to the principal; that one cannot become an aider or abettor by injecting himself into the situation after the crime has been committed by the principal and after the difficulty has terminated between the other two. It was further written in the Lyons opinion that if the evidence is conflicting as to whether or not the third person fired before the combat ended between the other two, the jury should be instructed that before defendant can be convicted of aiding and abetting it must believe from the evidence that he fired while the difficulty between the other two was in progress. The facts in the instant case distinguish it from Lyons v. Com., supra. Doll Lyons was 30 or 40 yards from the scene of the difficulty between his brother, Charles

The latter class (aiders and abettors) are discussed in Sections 184a, to and including 187a of the author's work, but for the purposes of this case we deem it necessary to refer only to Sections 184a and 184, wherein the author quotes from and approves the definition of an aider and abettor given by us in the case of Smiddy v. Commonwealth, 210 Ky. 359, 275 S.W. 872, 873, in which we said: "To constitute one an aider or abettor in the commission of a crime he must be actually or constructively present when it is committed and participate in its commission by some act, word, deed, or gesture. It is not essential that there should be a prearranged agreement between him and his co-defendants, but it is necessary that one charged with aiding and abetting be guilty either of some overt act or advocacy or encouragement of his principal in some way in the commission of the unlawful act." Continuing in the same section the author approves what we said in the case of Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534, to this effect: "It is necessary that he should aid either at the time of or before the commission of the offense by the other, * * *. He cannot become an aider and abettor by injecting himself into the situation after the crime has been committed by another * * *; and if he does so and is himself guilty of any infraction of the law thereafter, he is punishable for such infraction, but not because he has aided and abetted the other in the commission of a crime already committed."

Calico et al. v. Commonwealth, 206 Ky. 271, 267 S.W. 167; Griffin v. Commonwealth, 204 Ky. 790, 265 S.W. 327; Allen v. Commonwealth, 168 Ky. 325, 182 S.W. 176. In Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534, 535, the rule is thus stated: "The admissibility of a dying declaration is not affected by expressions of belief upon the part of deceased, made before the dying statement, or thereafter, to the effect that he expects to get well.

"If any person shall, in a sudden affray, or in sudden heat and passion, without previous malice, and not in self-defense, shoot at without wounding, or shoot and wound another person * * * he shall be fined not less than fifty nor more than five hundred dollars, or confined in the jail not less than six months nor more than one year, or both, in the discretion of a jury." The offense described in section 1242 is a degree of the offense defined by section 1166, and an instruction under section 1242 should be given where the facts authorize it. Noral v. Commonwealth, 202 Ky. 318, 259 S.W. 706; Lewis v. Commonwealth, 156 Ky. 336, 160 S.W. 1061; Balee v. Commonwealth, 153 Ky. 558, 156 S.W. 147; Gill v. Commonwealth, 235 Ky. 351, 31 S.W.2d 608; Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534; Noble v. Commonwealth, 217 Ky. 556, 290 S.W. 330; Gillum v. Commonwealth (Ky.) 121 S.W. 445. It is contended by the commonwealth that there was no evidence which tended to show that appellant was guilty of the lesser degree of the offense of shooting at and wounding another with intent to kill, and that therefore an instruction under section 1242 of the Statutes was not authorized.

Under similar facts we held such instructions proper in Harris v. Com., 218 Ky. 798, 292 S.W. 467, but such facts do not appear here. In Lyons v. Com., 216 Ky. 202, 287 S.W. 534, we reversed the judgment as to Doll Lyons because there was evidence that the shooting he did was done after Charles Lyons had inflicted upon Heath a mortal wound, and the combat between Heath and Charles Lyons was over and they had separated, which is not the case here. For a similar reason and under similar facts we reversed the judgment in Noble v. Com., 217 Ky. 556, 290 S.W. 330; hence that case is not applicable here. In Richardson v. Com., 235 Ky. 469, 31 S.W.2d 728, we reversed the judgment because the evidence showed Richardson had no part in the infliction on Spivey of his mortal wound, but had, after that had been done, shot at him without wounding him, so that case does not apply here.

Hence we have held that a dying declaration, 'made under consciousness of impending death, is not rendered incompetent by subsequent expressions of a hope of recovery.' " Wells v. Commonwealth, 209 Ky. 208, 272 S.W. 389, 391; Charles Lyons Doll Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534, 535; Stewart v. Commonwealth, 235 Ky. 670, 32 S.W.2d 29. Flannery's account of Crum's shooting him, introduced by the commonwealth as his dying declaration herein, over the objection of defendant, was, it appears, made by him several times between his being shot upon Saturday evening and his resulting death about Sunday noon following, and were made by him at times when he realized that the "shot had killed him.

From a judgment of conviction and ten years in prison, Marshall Pergram appeals, and asks a reversal upon the grounds that the court erred to the prejudice of his substantial rights by omitting the word "present" from the manslaughter instruction relating to his having aided and abetted his brother in the killing of Crouch, and also by failing to give an instruction on malicious shooting and wounding with intent to kill, and on shooting and wounding in sudden heat and passion. The facts of this case are strikingly like those presented in Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534, 536, where two brothers were convicted of manslaughter. One of them, Charles Lyons, was engaged in a fight with Silas Heath. Doll Lyons came to his rescue and intervened or attacked Heath after Charles and he had ceased fighting, the evidence, as here, being conflicting on that point.

If upon the next trial the evidence is essentially the same, the court will give no instruction upon murder, but may, if the evidence is essentially the same, give an instruction under section 1166, Ky. Statutes; that being included in the charge of murder. See Harris v. Commonwealth, 218 Ky. 798, 292 S.W. 467; Lyons v. Commonwealth, 216 Ky. 202, 287 S.W. 534; Noble v. Commonwealth, 217 Ky. 556, 290 S.W. 330. There is nothing in this evidence to show Richardson is responsible for the shooting done by Wolfinbarger, but he is responsible for the shooting he did himself unless done in his necessary self-defense.