
    BENNETT v. STATE.
    (No. 4955.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Criminal Law <@=»737(1), 779 — Acting as Principals — Instructions — Question for Jury.
    If a conspiracy between defendants is shown, or they acted together in the commission of the offense, the court is authorized to charge on that phase of the law, though, if such evidence were not in the case, such charge would be erroneous; but, if there is an issue as to whether defendants were acting together as principals, the court should submit the question to the jury for their decision, they being the judges of the weight of the testimony and credibility of the witnesses, and, the issue as to whether they were acting as principals or not being in the case,, the jury had the right, under appropriate instructions, to decide the question.
    2. Assault and Battery <§e=>89 — Criminal Law <§=»36S(1) — Evidence Showing the Circumstances — Res Gestíe.
    In a prosecution for aggravated assault, where defendant, another man, and a woman were in an automobile going south, and S. and his son were in one buggy, and B. and his son in another, both traveling north, and the automobile ran into B.’s buggy and smashed it up, and S. came up and asked B. if he was hurt, and also asked the people in the auto if they were hurt, defendant stabbing him in "the ensuing difficulty, testimony as to all that occurred was admissible as showing the acts and declarations of the parties present and participating, also upon the ground of res gestae.
    3. Assault and Battery <S^85 — Aggravated Assault — Evidence.
    In a prosecution for aggravated assault, where the assaulted party was stabbed by defendant and another, medical testimony as to the wonnds the doctor found on the assaulted person’s body when he examined him was admissible, though a wound under the arm, particularly described by the doctor, seemed by the testimony to have been inflicted by the person other than defendant, while the wounds on the face and other parts were inflicted by defendant.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Ed Bennett was convicted of aggravated assault, and be appeals.
    Affirmed.
    B. B. Sturgeon, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, bis punishment being assessed at a fine of $500 and 30 days’ imprisonment in tbe county jail.

This is a companion ease to that of Terrell v. State, 197 S'. W. 1107, decided during ttfe present term of tbis court. In a general way, the statement found reported in tbe Terrell Case will be sufficient for tbis ease. There are other matters incidental to this ease which will be noticed in connection with the hills of exception.

Appellant reserved exception to the charge because of tbe fact that the court submitted tbe issue of principals, contending that such issue was not raised by tbe testimony. It may be questioned whether or not the court submitted the issue of principals in regard to the aggravated assault phase of the case, and that such charge was only confined to the issue of assault with intent to murder of which appellant was acquitted. There was testimony by which the jury could find that the parties were acting together in committing the assault. That was the state’s theory. Appellant’s theory was that he acted in self-defense. Appellant was driving an automobile in which was seated a “sporting woman” and her companion, named Terrell. Running in the direction of the city of Paris he met Stites, the alleged assaulted party, who was in a buggy, and behind Stites was another buggy driven by Mr. Brooks, who had with him his little son. In passing, appellant’s automobile tore off the left hind wheel of Brooks’ buggy. The parties all stopped, and a conversation occurred. Stites had a lantern on the front of his buggy, and when the accident happened Stites removed the lantern from his buggy and was looking about the ground where the accident occurred. The conversation occurred between Stites and appellant and became rather animated and led to a personal difficulty. Appellant's contention was that Stites struck him with the lantern and knocked him to his knees, and that he used his knife in cutting Stites in self-defense; that while they were fighting the woman had gotten out of the auto, and through some exclamation of hers Terrell joined in the fight and stabbed Stites severely. Appellant cut Stites on tbe face and perhaps other places with his knife. He was fighting Stites at the time that Terrell interfered in the fight and stabbed Stites, and at the same time was cutting Stites himself. The state’s theory was that appellant provoked the difficulty, and called Stites a son of a bitch, and began getting bis knife out to cut him when Stites was notified to look out, and that he used his lantern only in warding off the blows of appellant. In a general way this is enough of the case to show the two theories.

The court instructed the jury with reference to the law of principals, and informed them if these parties were acting together they could consider the testimony in view of the definition of principals, but if they should find for defendant’s theory of the case, that is, that they were not acting together at the time and self-defense was in the case, then they would disregard the law of principals. Under the authorities we are of opinion that the court was correct. If a conspiracy is shown, or the parties acted together in the commission of an offense, the court would be authorized to charge on that phase of the law. If such evidence was not in the case, the charge would be error. But if there is an issue as to whether the parties were acting together as principals, the court should submit that question to the jury for their decision, they being the judges of the weight of the testimony and credibility of the witnesses, and the issue as to whether they were acting as principals or not being in the case, the jury had the right, under appropriate instructions, to decide that question.

The same question is presented from the standpoint of testimony as shown by a bill of exceptions. There were things said and done by the different parties at the time of the fight and while it was in progress, and in fact from the time of the collision between the auto and the buggy. This was all objected to for various reasons, as shown by appellant’s bill of exceptions. For instance, one of the bills recites while the witness Stites was testifying he stated, among other things:

“Buck was sitting in the car with the hood thrown back looking at me, and he jumped out, and before I could throw this fellow loose from me he stabbed me, and I began to stagger and say: ‘Don’t let them stab me any more. Buck has killed me.’ ”

Buck was Terrell.

It is contended this was not admissible, because the evidence shows that what Buck Terrell said and did was so said and done without the solicitation of the defendant; that defendant did not know what Buck Terrell was going to do, and was not responsible for what he did. These are stated as grounds of objection and not as matters of fact. The court, however, qualifies this bill by stating that no such objection was made to this testimony. So the bill passes out from that viewpoint.

The next bill recites that, while the witness Stites was testifying, he was asked what was said when he got to where the collision was. Appellant objected to all this and anything that was said or done by Emma Bice and Buck Terrell, because the defendant is not liable for what the said Emma Bice and Buck Terrell said or did. These objections being overruled, the witness testified the woman, Emma Bice, said:

“ T am hurt worse than any. Bring the light around here.’ She began cursing so I would not go to her. She says: T am skinned from my navel down. Bring the light around here.’ ”

Appellant objected to this because the evidence shows that he (appellant) was not responsible for what the woman said. The court signs the bill with this qualification:

“That the testimony shows that, immediately after the automobile ran into the buggy, the witness Stites went back to Brooks and then on to the automobile and asked them in the automobile if they were hurt, and the reply of Emma Bice is what the defendant objects to in this bill, and while Emma Bice was talking to Stites the defendant began to curse Stites, and from that time on the whole transaction between the parties was one continuous difficulty, and the defendant Bennett and Terrell and Bice were participants in the fight, either by words or by acts or both. The testimony further shows that Emma Bice was cursing and calling on Terrell to help Bennett and was within a few feet of Bennett and Stites while they were fighting.”

Another bill recites that while Stites was on the stand he was asked the following question by the state:

“After they had cut you, and after Mr. Brooks and his boys were carrying you up the road, what, if anything, did they say, either Bennett or Terréll?”

The same objections were urged as before; that is, that the defendant was not responsible for anything that Louie Terrell said or did. The court approves this bill with this explanation:

“Some of the witnesses testified that defendant and Terrell followed Stites as he was going off and cursed Stites, and which was only a minute or two after the cutting, and was res gestae. The further explanation is given that the defendant, Buck Terrell, and Emma Bice were indicted separately for assault to murder on Stites. The facts show that these three parties were in an automobile driving on a public road going south, and that Mr. Stites and son were in one buggy and Brooks and son in another, both traveling north, and Stites and son were in front of Brooks and son, and that the automobile ran into Brooks’ buggy and smashed it up some. That Stites went back some little distance to where Brooks’ buggy was wrecked and the automobile stopped, and Stites asked Brooks if he was hurt and then asked the people in the auto if they were hurt, and Emma Bice began cursing, and, while she was talking to Stites, defendant Bennett began cursing Stites, and from that time on the whole difficulty between the parties was one continuous transaction, and the defendant, Emma Bice, and Terrell were participants in the fight either by words or acts, or both.”

We are of opinion this testimony was admissible upon the ground that it showed the acts and declarations of the parties present and participating in the trouble, and also upon the ground of res gestae, as explained by the court. It all occurred in a very few moments.

Another bill recites that, while Dr. White was testifying for the state, he was asked to describe the wounds he found on Stites. Appellant objected to any testimony being given by the witness as to the wounds inflicted upon Stites by Buck Terrell. The bill further recites that the evidence shows the wound inflicted upon -Stites by Terrell was under Stites’ arm. The court overruled the objection, and the witness testified as follows:

“Fuller and I examined him and found the stab under his left arm that went to the hollow. This stab went pretty tolerably straight in, was made when his arm was up; could not have been made otherwise. It went into the pleural cavity. It did not reach his heart. If it had, of course it would have killed him; just a little bit more it was going in the direction of his heart, but was not quite deep enough.”

It is urged this evidence is not admissible because the evidence shows that defendant is not responsible for what Terrell did, as he did not know that Terrell was going to stab Stites, and has nothing to do with what Terrell did, and he should not be held responsible for it. The court explains this bill as follows:

“That this witness did not testify who made any wounds on the witness Stites, but was merely testifying as to what wounds he found on Stites’ person when he examined him.”

This testimony was admissible. As before stated, this wound was inflicted as described by Dr. White. The inference from the testimony is this wound was inflicted by Terrell, while the wounds on the face and other parts of the body were inflicted by appellant. Appellant had hold of and was engaged in a personal difiiculty with Stites at the time that Terrell ran up and stabbed him with a knife. It is deemed unnecessary to go into the details of this testimony. Suffice it to say, there is evidence showing these parties were acting together, and the court properly instructed the jury that if they should so find they could consider the testimony with reference to their being principals, and if not then they would disregard the testimony. The court submitted the issues of assault to murder and aggravated assault. The conviction was for aggravated assault.

We are of opinion that the rulings of the court were not erroneous, and that the judgment should be affirmed, and it is, accordingly, so ordered.

PRENDERGAST, J., absent. 
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     