
    SWEET v. STATE.
    (No. 8170.)
    (Court of Criminal Appeals of Texas.
    May 21, 1924.
    Rehearing Denied June 27, 1924.)
    1. Homicide @=»249 — Acts of accused’s companion held to make him principal in shooting of deceased.
    . Acts and conduct of accused’s companion in connection with shooting of deceased by accused held to make companion a principal within-Pen. Code, arts. 74, 75.
    2. Criminal law <§x^422(l) — Admission in evidence of acts and declarations prior to killing held not error.
    Admission in evidence of acts and declarations of principal prior to the killing of deceased held not error.
    
      3. Criminal law ¡@=3424(5) — Acts and conduct of principal held res gestee and admissible as such.
    Acts and conduct of a principal done after the commission of the homicide, and within ten minutes after its occurrence, held res gestee statements and admissible as such against accused.
    4. Criminal law ¡@=427(5) — Facts held to show conspiracy to kill deceased.
    Facts held to show that a conspiracy existed between accused and his companion to kill deceased.
    Appeal from District Court, Wheeler County; W. R. Ewing, Judge.
    Joe Sweet was conyicted of manslaughter, and he appeals.
    Affirmed.
    R. H. Templeton and C. C. Small, both of Wellington, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Wheeler county of manslaughter, and his punishment fixed at three years in the penitentiary.

That appellant shot and killed deceased on the occasion in question was not denied. The defensive theories were that upon learning of insulting conduct by deceased toward the little daughter of appellant the latter armed with a shotgun went to where deceased was and attempted to arrest him for said conduct, whereupon deceased made a movement toward his pocket and appellant shot him, asserting self-defense. The wound was the result of shots from both barrels of a shotgun and took effect in the head and face of deceased.

Deceased was working with W. G. and Cordie Jones the day of the homicide at his home. One Bryant came horseback to where they were, carrying a shotgun, and stated to deceased that some cows of his were in Bryant’s field and he wanted him to get them out. Deceased and Bryant had some further conversation, and the latter said: “If you are going to do anything with them, let’s go,” whereupon deceased got on a horse and left with Bryant, who had his gun on the front of his saddle. This was Saturday afternoon. That' morning Bryant was at John Garner’s place when deceased passed and in a few minutes unhooked his horses from a wagon and got on one of them and rode off, no explanation being given of his conduct. Bryant did not testify as a witness in this case.

From the testimony of the two Joneses we learn that, about 10 minutes after deceased and Bryant left, the latter and appellant came back on horseback and appellant said that he had just killed deceased. He offered to take witnesses down and show them. They went at once to the scene of the homicide, and one of them said that he doubted if it was 30 minutes after the shooting until they got down to where deceased lay. Appellant and Bryant rode, and the others walked. On the way there Bryant stated that he was proud of it, glad deceased was killed, that he (Bryant) had daughters and was afraid for a man like deceased to be loose in the community. When they got to deceased, Bryant looked at him and said: “The whole damn side of his face is shot of.” He and appellant then rode away.

When the state closed its case, appellant made a motion to exclude all the testimony of acts, declarations, and conduct of Bryant, and especially the testimony of the two Joneses as to that part of Bryant’s conversation and conduct that occurred after the shooting. This motion was -overruled, but in his charge the learned trial judge saw fit to tell the jury not to consider the acts and declarations of Bryant as testified to by the Joneses. Appellant’s first bill of exceptions complains of the refusal of said motion.

Relative to the acts, words, and conduct of Bryant before the shooting, we observe that it was the state’s theory that Bryant was a principal offender with appellant. As supporting this contention, in addition to the fact that Bryant came with a gun to where deceased was and induced him to go with him to where they met appellant, the state put on the stand an eyewitness to the shooting who testified that he met appellant on that day and was induced by appellant to accompany him; that they went by the home of a Mr. Marr, where appellant procured a shotgun and then by the home of Bryant and from there in the direction of the home of deceased till they met deceased and Bryant. When they met them, appellant told deceased to stick up his hands and both appellant and Bryant got off their horses. Witness testified that appellant had his gun leveled at deceased, and that Bryant also held his gun on deceased and was standing close by appellant. He also stated that Bryant was holding the horse of deceased and that after deceased was shot Bryant and appellant rode away together. This witness said it was about 400 yards from the scene of the shooting to the home of deceased.

Article 74 of our Penal Code makes all persons who act together in the commission of a crime principal offenders. Becoming more specific, article 75, P. C., proceeds to say that when a person commits a crime and another is present and, knowing the unlawful' intent, aids by acts, or encourages by words or gestures, the principal actor, such other persons become a principal in the crime, and we see no escape from the conclu-'«ion that-the acts and conduct of Bryant as detailed by witness Childress sup-port the ■proposition that he was a principal. We gather from the testimony of this witness that when appellant told'deceased to put up his hands the latter wanted to know what for or something to that effect and appellant told him for insulting his girl, and then fired both barrels of a shotgun into the head of deceased. Bryant not only then held his gun on deceased and held his horse, but went back with appellant to where the Joneses were and to them expressed his entire approval of what appellant had done and disclosed his knowledge of the motive and reason for which it was claimed to have been done, and further then rides with appellant from place to place for some time after the homicide, as appears from the testimony of appellant himself. No other explanation ox" inference can arise from Bryant’s conduct, as it appears to us, save that he was a principal. We think; there was no error in admitting evidence of what he did and said prior to the killing, upon the theory that he was a principal offender.

As to what was said and done by Bryant afterward, we observe there was nothing in his statements which contradicted appellant’s claim of self-defense,' or tended to lessen the likelihood that the jury would believe his story relative thereto. If we are permitted to interpret the effect of such testimony upon the jury, it would seem to support and strengthen the theory of the defense based upon the issue of manslaughter, for one whose female relative had not been insulted, but who was evidently familiar with antecedent facts, to place before the jury the fact that he was proud of what had been done, had daughters himself, and that the community was well rid of such a man as deceased. Passing that aspect of the matter however, we believe the acts and conduct of Bryant to be res gestas. Within 10 minutes after Bryant and deceased left the home of the latter, Bryant and appellant are back, and appellant, according to both the Joneses, declared that he had killed deceased “that he was the son of a bitch that done the workand the four proceeded at once to the scene of the homicide. JChe acts, words, and conduct of Bryant occurred in the presence of appellant as they go back and at once upon their arrival at the scene.

Res gestae statements of the principal act- .or in a homicide are no more admissible than are statements of one who is a principal in the offense, but who is not the chief actor in the deed. Mr. Branch cites many authorities in section 83 of his Annotated P. C. supporting the proposition that whatever is said by any party to a transaction, declared on in the indictment at .the time of the transaction, is a part of the transaction itself and a part of the res gestse.

But appellant presents objection to the state proving that Bryant held his gun on deceased during the fatal difficulty, on the theory that no conspiracy between appellant and Bryaht had been shown and that Bryant’s act was but the voluntary act of a third party. In Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746, a case that is regarded as leading and that has often been cited, Judge White says:

“To our minds, a great deal of the trouble, confusion,- and discussion with regard to conspiracy, where two or more are charged with the commission of crime, might and can be obviated by keeping in mind these statutory provisions. If the parties can be identified at the time and place as joint participants in the commission of the crime, why the necessity of going behind'that fact to establish a conspiracy to do the act already accomplished, and for which the law denounces them as principal offenders and liable to punishment as such? Why want a better predicate, or any further evidence even of a conspiracy, if their presence and guilty participation is already established?”

We are of opinion that the testimony objected to in each of the bills of exception presented by appellant was admissible for one or the other of the reasons stated. We have carefully examined the able brief and argument presented by appellant and would be in accord with his contention that the withdrawal in the charge of certain testimony would be ineffectual to remove the injury of the admission of such testimony, if we could agree with appellant in his major premise that the testimony was inadmissible, but we cannot.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

In an able and persuasive motion for rehearing, appellant urges and argues general-lj' the inadmissibility of the testimony of the witness Bryant. We devoted much time to the consideration of the testimony of this witness originally and' have not been led to conclude that our decision in regard to same was erroneous. The quotation made by us from the case of Cox v. State, supra, seems entirely applicable, and it being shown practically without controversy that Bryant was acting with appellant in the commission of the offense, as stated by the court in said opinion, there seems little necessity for discussion of the question of whether there was a conspiracy shown between Bryant and appellant. In addition to his presence and co-operation with appellant at the time of the homicide, it further appears that said Bryant went with appellant from the scene of the homicide back to where the Jones witnesses were and from that point with all the party back again to the scene of the homicide, and from that point again accompanied appellant when he went away from said place. The inference and conclusion seem so strong to ns — from all the facts in evidence, that Bryant went to the place where deceased was working and made statements to him not in any wise shown to he true and thereby induced deceased to accompany him directly to the place where in a few minutes they met appellant, who acted with Bryant in the swiftly moving events— as to almost entirely negative the possibility that there was no prior agreement between Bryant and appellant in the premises. All the statements made by Bryant were in the presence of appellant, who with Bryant was escorting the witnesses, who testified to the statements of the latter, to the scene of the homicide, where deceased was found, but not yet dead.

We think it not necessary to further elaborate the discussion. The authorities cited by appellant in his motion for rehearing do not seem to us to shed any new or different light upon the law relative to said testimony, from that had before us in the original consideration of the matter.

The motion for rehearing will be overruled. 
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