
    JOYCE v. STATE.
    (No. 6333.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.)
    1. Criminal law <&wkey;>784(l) — Evidence in homicide trial held to justify instruction on circumstantial evidence.
    Circumstances in evidence connecting defendant with homicide held to justify instruction on circumstantial evidence.
    2. Homicide <&wkey;305 — As to participation in murder defensive theory shown by the evidence should be submitted to jury.
    In homicide trial, where the killing was done by L., and defendants supported testimony was that when L. left the restaurant defendant was unaware that he intended to return, and while L. was gone an independent dispute arose between defendant and deceased which had no connection with the trouble between L. and deceased, this defensive theory having been raised, it should in some manner have been submitted to the jury.
    3. Homicide <§=w300(8) — Instruction on provocation and the converse should be given also.
    In prosecution for manslaughter committed by another than defendant, an instruction regarding the provoking of the difficulty was propel-, the issue having fairly been raised, but having thus limited the right of self-defense of the person doing the killing, and thereby defendant’s right, the converse of the instruction should have been given to apprise the jury what defendant’s rights would be in absence of an intent to so provoke the contest.
    
      Appeal from District Court, Bell County; M. B. Blair, Judge.
    Homer Joyce was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Dewitt Bowmer and W. W. Hair, both of Temple, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

This is an appeal from a conviction for manslaughter, with a five-year sentence.

The first bill of exceptions raises a question as to irregularities in drawing the ve-nire. As this cannot arise on a subsequent trial it will not be discussed.

A request was made that the jurors as .selected be retired from the courtroom, and not be permitted to hear the examination of other veniremen. This was refused. We have had occasion to commend the practice of having selected jurors retired as being in the interest of a fair trial. See Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Crow v. State, 230 S. W. 148; Gunn v. State (No. 6357) 234 S. W. 399, decided November 2,1921, and not yet [officially] reported.

After the court submitted his charge to the attorneys in conformity to article 735-, Vernon’s C. C. P., said attorneys filed objections thereto because nowhere in said charge did the court instruct on circumstantial evidence as applied to the guilt of appellant; urging in the objection that there was no proof of conspiracy between John Bewallen and appellant, and as to whether or not appellant was a principal with Lewallen was a question depending wholly upon the inferences to be drawn from circumstances in evidence, and not from any positive testimony in the case. In connection with this objection appellant requested the following special charge, which the court refused:

“In this ease, if you believe beyond a reasonable doubt that under the instruction heretofore given you in the charge of the court John Lewallen was guilty of some grade of culpable homicide, then you are instructed that as to whether Joyce was a principal with John Lewallen in such homicide, as the word ‘principal’ has heretofore been defined to you in this charge, depends upon circumstantial evidence; the state in this case relying upon circumstantial evidence to show that Homer Joyce was a principal in the homicide with John Lewallen. I charge you the law of circumstantial evidence as follows: In order to warrant a conviction of crime on circumstantial evidence, each fact necessary to the conclusion sought to be established, that is, as to whether Homer Joyce was a principal with John Lewallen or not, must be proved by competent evidence beyond a reasonable doubt. All the facts, that is, the facts necessary to such conclusion, must be consistent with each other and with the main fact sought to be proven; and the circumstances taken together must be of a conclusive nature, leading on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, Homer Joyce, was a principal, as that word has hereinbefore been defined in this charge to you, with John Lewal-len in the offense charged. But in such cases, you are charged that it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant; they must exclude to a moral certainty every other reasonable hypothesis except the defendant’s guilt, and, unless they do so beyond a reasonable doubt, you will find the defendant not guilty.”

In order to appraise the applicability, or otherwise, of the principle invoked, it will be necessary to set out in some detail the facts.

On the day of the homicide, November 30, 1920, John Zurovec, the deceased, was running a cold drink and eating place in the city of Temple. On this date the appellant, John Lewallen, and one Lanham went to Temple from their homes in the country some 14 miles away. Lewallen at this time had a ear in the garage for repair. It had been promised to him at 6'o’clock, and all were intending to return home when the car was ready. About 6 o’clock appellant, Lewallen, Lanham, and ■ one Caldwell started to the garage, and at the suggestion of appellant stopped at deceased’s to get some sandwiches. The record in this case shows that deceased and all of the above-nained parties were strangers. As the parties entered deceased’s place of business the words “s-n of a b-h” were used, appellant and his witnesses claiming that Lewallen used the term referring to his car, having said, in substance, that the “s-n of a b--h was not worth taking home after they got it.” Some of the testimony indicates that this term was also used by the appellant. Deceased evidently thought, whether correctly or not, that the term had been directed at him, and said to Lewallen that he (Lewallen) was not going to call anybody that in his place of business. In the meantime appellant had ordered four sandwiches. When deceased remarked to Le-wallen that he was not going to call anybody that name in his place of business, according to the state’s testimony, Lewallen said, “You are a s-n of a b-h,” and that deceased replied, “Well, if I am a s-n of a b-h, what are you; are you one, too? ” Appellant’s testimony, on the contrary, is to the effect that Lewallen said to deceased, “I didn’t call you a s-n of a b-h”; that deceased said, “You did,” and ordered him (Lewallen), out of the house. According to appellant’s testimony, deceased at this time had a large knife in his hand, with which he had been cutting bread or meat, and that Lewallen said to him, “What has that knife got to do with me getting out? ” and that deceased replied, “I will show you if you don’t get out.” At this point Lewallen went out of the building, saying, according to some of the witnesses, “I will go out and take a leak before tbis man. waits on me,” and according to others “before tbis man works on me.” Tbe appellant disclaims having beard him make any remark whatever. When Lewallen walked out of tbe building Caldwell followed him; tbis only leaving appellant and Lanham. When deceased brought tbe sandwiches to appellant, appellant claims that be asked him what was the matter with him and Lewallen, and deceased again said, “He called me a s-n of a b-h,” and that appellant said, “No, you are mistaken; I don’t think he called you ■that.” Upon appellant again saying he did not think he had called him a s-n of a b-h the deceased said, “That is all right whether he did or not,” and that as he turned around appellant called him back and said, “Here is the pay for the sandwiches,” and gave him a $5 bill; that deceased took the bill, and registered 40 cents and handed back four $1 bills and 50 cents in change; that appellant then said to him, “You didn’t give me the right change, did you?” to which deceased replied,- “Yes,” and that appellant said, “X don’t think you did,” and that a dispute arose with reference to that, in which deceased contradicted appellant, and that appellant threw a mustard bottle at deceased, claiming that he (deceased) at the time had a knife in his hand. Appellant claims that his act in throwing the mustard bottle at deceased had no connection whatever with the dispute that John Lewallen had had with deceased, and that he (appellant) had ho knowledge at that time that Lewallen had come back in the restrau-rant. Appellant disclaims knowing that Le-wallen was armed; says that he had been with him during most of the day, and that if he was armed he did not know it and did not think that he was; that at the time Le-wallen left the restaurant he had no knowledge that he expected to return, and believed that he intended to stay away; that when he threw the mustard bottle at deceased deceased ran down the counter a few steps, and that then for the first time he (appellant) discovered that Lewallen had come back into the restaurant, and that when deceased saw Lewallen he said, “You get out, you called me a s-n of a b-h,” and that Lewallen replied, “I did not call you a s-n of a b-h,” and that deceased again said, “You get out,” and started at Lewallen with the knife, whereupon Lewallen drew his pistol and fired upon deceased, killing him. Appellant disclaims any knowledge that Lewallen intended to shoot deceased, and that at the time he threw the mustard bottle he had no idea there was going to be any shooting by anybody; that he had no purpose in his mind of assisting John Lewallen or any one else to kill deceased; that from the time he first saw Lewallen back in the building up to the time the shooting was over that he (appellant) did nothing and said not one word; that the reason he threw the mustard bottle, at deceased was because deceased disputed his word, and that it had nothing to do with deceased and Lewallen’s quarrel whatever. The state’s witnesses claim that the firing of the first shot by Lewallen and the throwing of the mustard bottle by appellant were practically simultaneous.

■ As may be seen from an examination of the evidence, there is nothing to indicate a conspiracy between appellant and Lewallen to kill deceased. They were strangers to one another. No motive is shown for the killing save the dispute which arose immediately upon the entry into the restaurant. If Le-wallen became incensed at deceased ordering him out, procured a pistol and returned with the intent to kill deceased, there is no positive evidence to show that appellant had knowledge of it; that he in any way acted with le-wallen as a principal must be inferred from his companionship with him, and from his acts and conduct at the time in throwing the mustard bottle, etc. That Lewallen did the killing was unquestioned. The trial court properly charged the jury that before they would be authorized to convict appellant of •any offense they must find beyond a reasonable doubt that Lewallen unlawfully killed deceased, that appellant was present, and knew of Lewallen’s unlawful intent, and, so knowing, aided him by acts or encouraged him by words or gestures to kill. That he knew of such unlawful intent, or that any thing appellant may have done was in aid and furtherance thereof, must be deduced from other facts in evidence. His principalship must stand or fall upon inferences from other facts in evidence. The earliest case in our reports upon the issue under consideration is Burrell v. State, 18 Tex. 713, decided in 1857. Burrell and Burns were ’tried together for killing Bird. The evidence showed that Burrell fired the shot. Burns was present, but his participation as a principal was only shown by proof of circumstances. Judge Wheeler, writing the opinion, affirmed as to Burrell, but reversed as to Burns because the court failed to charge pertinently the law of circumstantial evidence as to the latter’s connection with, the killing. This case has been quoted from at length and approved in the case of Anderson v. State, 85 Tex. Cr. R. 411, 213 S. W. 639, where this same question was decided in accordance with appellant’s contention. See, also, Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82; Pizana v. State, 81 Tex. Cr. R. 81, 193 S. W. 671. It follows' from what has been said that our conclusion must be that it was error not to have given the special charge requested.

Another question closely akin to the one we have been discussing is raised by objection to the court’s charge that nowhere therein is appellant’s defensive theory affirmatively presented. A spécial charge was also requested supplying this omission. An examination of the charge leads us to believe the criticism is well taken. Appellant’s testimony, supported by Lanham’s, was to the effect that, when Lewallen left the restaurant appellant was unaware that he intended to return, or of any intent on his part to assault deceased; that while Lewallen was gone an independent dispute over change arose between appellant and deceased ’that had no connection in any way with deceased’s and Lewallen’s trouble, and that as a result of their own dispute appellant threw a mustard glass or bottle at deceased; that if Lewallen had returned at this time appellant did not know, it; and that during the time Lewallen was shooting appellant did or said nothiug This defensive theory being raised by the evidence, it should in some appropriate way have been submitted to the jury.

We find ourselves unable to agree with appellant’s contention that the court should-not have charged upon provoking the difficulty. Under all the evidence we are led to believe this issue was fairly raised. But having limited Lewallen’s right of self-defense by so charging, and thereby appellant’s also, the court should have given the converse of the charge in order to apprise them what the right of accused would be under the law in the absence of an intent to so provoke a Contest. A failure to charge the converse has many times been held error. Branch’s Ann. P. C. vol. 2, § 1958, and many cases collated.

• Many other interesting questions are raised, but -they are not likely to occur on another trial; hence are not discussed.

For the errors pointed out, the judgment will be reversed, and the cause remanded.  