
    NOTHAF v. STATE.
    (No. 6748.)
    (Court of Criminal Appeals of Texas.
    May 3, 1922.)
    1. Homicide &wkey;>3IO(2) — In prosecution for assault with intent to murder, refusal to submit lower grades of the offense held error.
    In prosecution for assault with intent to murder in which there was evidence that defendant, who had been arrested on a felony charge, and other prisoner had made attack on deputy sheriff, who was taking them to county in which they were wanted, pursuant to previously formed plan, and that during the scuffle other prisoner had obtained possession of sheriff’s pistol and had shot at sheriff, refusal to submit defendant’s theory that such act on part of other prisoner was not contemplated by defendant at the time he entered into the conspiracy, and that defendant did not know that other prisoner intended to fire upon the officer and to submit lower grades of the offense than that of assault with ’intent to murder, held error in view of evidence.
    2. Homicide &wkey;>ll00 — Where prisoners conspired to escape-, one prisoner was guilty of assault with intent to murder while other pris- . oner shooting at officer only if the conspiracy contemplated such shooting.
    Where two prisoners in custody of deputy sheriff, who was taking them back to county in ■ which they were wanted on a felony charge, conspired to attack deputy and escape, and pursuant to such conspiracy did attack deputy, and during the attack one of them obtained the deputy’s gun and fired at him, the other prisoner would be guilty of assault with intent to murder if the conspiracy contemplated escape at all hazards, even to the extent of taking the deputy’s life if necessary, but was guilty merely of a lesser degree of assault if act of other prisoner in shooting at deputy was not within the •contemplation of the parties.
    3. Criminal law <&wkey;448(I!)— Officer’s testimony that it appeared defendant was protecting prisoner who fired at officer held improper.
    In prosecution for assault with intent to murder of prisoner, who with other prisoner had made attack on officer, during which other prisoner had fired at officer, in which defendant claimed such act of other prisoner was without his knowledge, the officer’s testimony that it appeared to him that defendant was protecting the other prisoner who was handling the gun held improper as the statement of a conclusion.
    4. Criminal law &wkey;366(3) — Testimony as to how many shots were fired by officer after, regaining possession of pistol fired at officer by defendant’s accomplice held admissible as part of res gestae.
    In prosecution for assault with intent to murder of a prisoner who with other prisoner had made attack on officer, during which other prisoner had fired at officer, testimony as' to how many shots were fired by the officer after he regained possession of the pistol held admissible as a part of the res gestae.
    .Appeal from District Court, Denton County ; 0. R. Pearman, Judge.
    John Nothaf was convicted for assault with intent to murder, and he appeals.
    Reversed and remanded.
    Jno. T. Spann, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for assault wiith intent to murder. Punishment two years’ confinement'in the penitentiary.

Appellant and one Williams were wanted in Dallas county upon a felony charge, and were being held by the officers at Gainesville. W. J. Davis, the assaulted party, was a deputy sheriff for Dallas county, and had gone to Gainesville to convey appellant and Williams to Dallas. They left Gainesville on the train at 3 o’clock in the morning. Nothaf and Williams were handcuffed, Nothaf’s right wrist to Williams’ left. According to Davis’ testimony, about daylight appellant asked Davis if they could get a drink. Upon approaching the water copier appellant threw red pepper' in the eyes of the officer, and Williams immediately said, “John, get his gun.” Appellant, Williams and the officer all got hold of the gun, but in the schuffle the two twisted it out of his hands, and Williams presented it at the officer, telling him (with an oath), “Get to the other end of the car or I will kill you.” On the failure of the officer to comply, he fired at him. The officer finally got to them again, and íd the scuffle they got down, Williams being on the bottom, the officer on top of him, and appellant on the officer. Appellant got his finger in the officer’s mouth and pulled his head around. The officer discovered at this time that the gun was again cocked, and got his hand between the hammer and cylinder, catching the falling hammer on -his hand, and thus preventing the pistol from again firing. The conductor came to the officer’s help, pulled appellant loose, and the officer regained possession of his gun. During the scuffle the gun was discharged several times.

The court did not submit a charge upon any lower grade of offense than that of assault with intent to murder. Exception was reserved to the failure to submit the lower grades. The only defensive charge presented was tha.t, if at the time Williams shot Davis he did not intend to kill, appellant should be acquitted of assault with intent to murder, or that, if appellant did not know of the unlawful intent of Williams to shoot Davis, he should likewise be acquitted of assault with intent to murder. Appellant’s testimony raising the defensive issues was as follow's :

“There was an understanding between me and Frank Williams that we would escape without harm to Mr. Davis. Our intention was to throw pepper in his eyes and get hold of his gun and throw it out of the window so he could not harm either of us. Frank Williams originated this plan to escape, -and there was a specific understanding between us before I agreed to enter into it; he promised me faithfully not to harm Mr. Davis whatever before I would go into it, and he said all right, and I believed him, and entered into- it with the firm belief that there would be no harm done. I had been told that red pepper would not injure the eyes of a human being. My purpose in the scuffle was to get Mr. Davis’ gun and throw it out of the window so he could not hurt us. Frank Williams got hold of the gun. I did not know at any time that Frank Williams intended to shoot Mr. Davis.”

A special charge was requested by appellant to the effect that, if appellant and Williams conspired together to effect their escape by throwing pepper in the eyes of the officer, and that no other injury was to be inflicted upon him, and that appellant entered into such conspiracy only with that understanding; and that after Williams secured possession of the officer’s pistol he fired at the latter, and that such act on the part of Williams was not contemplated by the appellant at the time-he entered into the conspiracy, and he had no knowledge of Williams’ intent to fire upon the officer, appellant would not be guilty of assault with intent to murder. The court declined to submit this charge, and in such refusal, we think, committed error. The general proposition stated' by Mr. Branch in his Ann. Penal c6de, on page 351, relative to the offense of murder resulting from conspiracy, is as follows:

“If there is evidence that no more was contemplated than an ordinary battery on the deceased and that another, on an independent impulse or design, killed the deceased, the court should charge affirmatively on such theory and inform the jury that if such was the purpose of the defendant, and that another besides the intent and purpose of the defendant killed the deceased intentionally that the defendant would be guilty of no higher offense than an assault and battery.”

This proposition is supported by Harris v. State, 15 Tex. App. 637; Blain v. State, 30 Tex. Cr. R. 706, 18 S. W. 862; Mitchell v. State, 36 Tex. Cr. R. 314, 33 S. W. 367, 36 S. W. 456; Wilson v. State, 70 Tex. Cr. R. 3, 155 S. W. 242. The Wilson Case last cited was one of assault with intent to murder, which follows the doctrine heretofore announced, and cites many cases in support thereof. If the conspiracy contemplated escape at all hazards, even to the extent of taking the officer’s life if necessary to effect it, appellant would be responsible for any act of Williams within contemplation of the conspiracy; but if the understanding limited the assault to one less than contemplated murder, and Williams, moved by’ an independent and new design not embraced in the original undertaking, fired at the officer, intending to kill him if necessary to effect their escape, it would be manifestly unjust to hold appellant accountable for an act which he never contemplated, and which extended beyond his agreement. The propriety of the court giving the . requested charge is we think apparent, and carries with it the necessity of also submitting appropriáte instructions on the lower grades of assault.

A number of bills of exception are presented to the reception and rejection of testimony. We deem it unnecessary to discuss them at length, as the case will likely not be developed in the same manner upon another trial. We would, however, call attention to one bill which indicates that the witness Davis was permitted to state a conclusion, in that it appeared to him appellant was protecting the man who was handling the gun. This appears upon its face to have been improper, but perhaps not of very serious character. Complaint is also made .because appellant was not permitted to show how many shots were fired by the officer after he regained possession of the pistol. This might not throw any light upon the question of appellant’s guilt, but it occurs to us it would be proper to admit such testimony as developing the res gesta; of the entire transaction.

For the error heretofore discussed, the judgment of the trial court is reversed, and the cause remanded. 
      (&wkey;>For other oases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes
     