
    DAVIS v. STATE.
    (No. 10307.)
    Court of Criminal Appeals of Texas.
    Jan. 12, 1927.
    Rehearing Denied June 22, 1927.
    1. Criminal law <@=439 — Certified copy of Judgment of conviction in another state certified only by clerk of court held inadmissible (Full Faith and Credit Act [U.' S. Comp. St. §§ 1519, 1520]).
    In prosecution for murder, excluding certified copy of judgment and sentence of court of another state showing that deceased had been convicted and sentenced for offense of robbery, which judgment was only certified to by clerk of court, held not error, since it did not comply with Bull Faith and Credit Act (U. S. Comp. St. §§ 1519, 1520).
    On Motion for Rehearing.
    2. Homicide <@=300 (3) — Instruction on self-defense which followed almost literally accused’s testimony held not erroneous.
    In prosecution for murder, instruction that if jury found that at time of homicide, or just prior thereto, deceased had taken money belonging to another, and that immediately thereupon deceased made an attempt to draw a pistol from his pocket, and that D. shot and killed deceased, they should find accused not guilty, which followed almost literally accused’s testimony, held not erroneous.
    3. Criminal law <©=>1059(2) — Exception that charge as whole or that some paragraph of same is too burdensome cannot be considered on appeal.
    An exception to a charge that same as a whole, or that some paragraph of same, is too burdensome, cannot be considered on appeal because not specific and pointing out no error.
    4. Homicide <@=300(3) — Instruction to acquit defendant if deceased took money, etc., and that “immediately” deceased made attempt to draw pistol held not erroneous in use of quoted word.
    In murder prosecution, instruction that if just prior to homicide deceased had taken money belonging to D., and that “immediately” thereupon deceased made an attempt to draw pistol from his pocket, and that D. shot and killed deceased, they should find defendant not guilty, held not erroneous in use of word “immediately,” in view of evidence that fight preceding shooting did not last any certain limit.
    5. Homicide <@=305 — Instruction on law of principals as applied to murder held sufficient.
    Instruction setting forth principle that law of principals as applied to murder is met when facts show that one without justification or extenuation and upon malice aforethought kills a human being, and accused being present and knowing unlawful purpose of slayer aids him by acts or encourages him by words or gestures to do such killing, Jield' sufficient; it being unnecessary that accused acted upon his own malice aforethought.
    6. Criminal law <§=»823(4) — That part of charge did not instruct that killing must have been on malice aforethought held not error, in view of other parts of 'charge.
    In murder prosecution, where one paragraph of instruction did not tell jury that killing must have been on malice aforethought, but other parts of same explicitly told jury that killing must have been on malice aforethought, there was no error.
    Commissioners’ Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Hugh Davis was- convicted of murder, and he appeals.
    Affirmed.
    J. Ross Bell, of Paducah, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted in the district court of Wilbarger county, on a change of venue from Ford county, of the offense of murder, and his punishment assessed at 30 years in the penitentiary.

The theory of the state, briefly stated, is as follows:

One W. A. Smith and the deceased, Harry Grady, had been picking cotton for the appellant, 'and on the day of the killing appellant paid them off. After they; were paid off, Jess Davis, Owen Davis, and the appellant at the muzzle of a shotgun forced the said Smith and the deceased into the house where they were living and robbed Smith and the deceased of their money. After they had robbed them of their money, Jess Davis, a brother of appellant, killed deceased by shooting him with the shotgun, and the witness Smith escaped.

The theory of the appellant was that the fight started over a game of cards; that the deceased reached for his hip and said, “I will kill the sons of bitches,” whereupon the said Jess Davis shot the deceased, claiming that he shot him in self-defense, the appellant being present at the time of the killing.

Appellant complains in his bill of exceptions No. 2 that the court erred in not allowing him to introduce a certified copy of the judgment and sentence of the trial court of Ford county, Kan., showing that deceased had been convicted and sentenced for the offense of robbery. We are unable to agree with the contention of the appellant. The record discloses that the judgment offered in evidence was only certified to by the clerk of the district court of Ford county, Kan. This does not comply with the act of Congress known as the “Full Faith and Credit Act.” It must be proven up as required by this law before it would be admissible. Walker v. State, 64 Tex. Cr. R. 70, 141 S. W. 243; Rev. Stat. §§ 905, 906 (U. S. Comp. St. 1913, f§ 1519 and 1520, pp. 647, 648).

Appellant’s bills of exceptions Nos. 3, 4, 5, and 6 show no error as presented.

We have examined the facts very carefully and find the same amply sufficient to support the verdict of the jury. The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

The state’s - theory of this killing was that appellant and his brothers, intending to rob and murder deceased, Grady, and witness Smith, made a combined attack upon the two men, Jess Davis and Owen Davis attacking Smith, and this appellant, holding a shotgun upon deceased while the other two men were taking from Smith his money; that after they had done so appellant handed the shotgun to his brother, Jess Davis, and told him to kill both' deceased and Smith; that Jess Davis took the gun, and while deceased was sitting on a trunk and doing nothing Jess Davis shot and killed him. Smith testified for.the state, and said that in the struggle with Jess Davis and Owen Davis, which resulted in their finally taking from him his money, his clothing were badly torn and all the buttons pulled off his clothes, and they loosened the hair on his head and otherwise injured him. He testified that this appellant held the gun on deceased while Jess and Owen Davis were taking witness’ money; that after they had gotten it away from him, Hugh Davis (appellant) handed the gun to his brother Jess and told him to kill both of them; that Jess took the gun and pointed it at deceased, who was sitting on a trunk holding his money in his hand; and that Jess then threatened to kill deceased, who told him to shoot, or words to that effect, and that Jess pulled the trigger and deceased was instantly killed,-his body remaining in an upright position on the trunk, still holding his hat in one hand and his money in the other. Witnesses who saw Smith first after he left the house corroborated him as to his appearance, that all the buttons were torn from his clothing, and that his hair was loosened in his head; others swore that the body of Grady was sitting on the trunk, his hat in one hand and his money in the other, and that he was shot in the head with a shotgun. The theory of the defense was that following a game of cards and the drinking of liquor, Smith and. deceased, who were losers in the game, grabbed the money, and that Jess and Owen Davis had a struggle with Smith to retake the money which he had grabbed, at the conclusion of which struggle deceased, still holding the money which he had taken, threw his hand back to his hip and threatened to kill all the Davises, whereupon Jess Davis caught up the shotgun and killed deceased in self-defense.

Appellant insists that the charge of the court was erroneous in paragraph 20. In same the jury were told that if they found from the evidence, or had a reasonable doubt thereof, that at the time of the homicide or just prior thereto deceased, Grady, had taken money belonging to Jess Davis, etc., and that immediately thereupon deceased made an attempt to draw a pistol, from his pocket, and that Jess Davis shot and killed deceased, they should find this appellant not guilty. Appellant was the only eyewitness to the killing who swore for the defense. He swore as follows:

“Owen jumped up to take the money away frqjn-Shnith, and Jess jumped in to help him take it a was from him. When Jess jumped in Grady grabbed Jess’ money and was going to get away with it. * * * He changed the money and hat into his left hand and reached for his hip and said, T will kill every son of a bitch.’ Then Jess grabbed the gun and shot him. Smith jumped out over the bed and went out of the house.”

We have quoted this so that it might plainly appear that the learned trial judge, in that part of the charge complained of, was giving to the jury an affirmative charge presenting the defensive theory as made by the testimony. As we read this record, the charge followed almost literally the testimony of appellant. It is as if the court had said: “If you believe Grady grabbed Jess’ money and was going to get away with it, and that he changed the money to his left hand and reached for his hip, and that Jess then grabbed the gun and shot him, you will acquit.” No other defensive theory appears from the testimony, and had the trial court not given an affirmative presentation of the law applicable to said testimony as given by appellant, we might have been compelled to reverse this case. The charge referred to is necessarily based on the assumption that the jury, in order to acquit on this issue, must accept as true the defense testimony raising it. There was no exception to said paragraph on the ground that same did not submit any defensive issue of self-defense against apparent danger.

The court told the jury in paragraph 24 that if they believed, or had a reasonable doubt thereof, that deceased by' words or acts, or both, was doing anything which led Hugh Davis, Jess Davis, or Owen Davis, or any of them, to have a reasonable expectation that the life of either of them was in danger, then Jess Davis had the right to shoot deceased, and they should acquit. So, also, paragraph 25 of the charge fully submitted the right of Jess Davis to kill, if he believed that deceased had threatened his life or .to do him serious bodily injury, and that at the time of the homicide it reasonably appeared to said Jess Davis, viewed from his standpoint, that deceased by some act then done manifested an intention to execute such threat.

Complaint is made that the charge groups these defensive facts in said paragraph 20. We find no such exception to the charge for this reason, as is required in article 666, C. C. P. An exception to a charge that the same as a whole, or that some paragraph of same, is “too burdensome,” could not be considered, because not specific and pointing out no error.

It is argued that the use of the word “immediately” in paragraph 20 of the charge, wherein the court told the jury that if the deceased took money of Jess Davis, etc., and that “immediately” thereupon deceased made an attempt to draw a pistol, was not proper; the contention being that, according to appellant’s testimony, deceased did not make the movement to get a pistol until the conclusion of a fight between Jess Davis and witness Smith, and that it was* at least SO minutes after Grady had taken the money before he made the movement to draw a pistol. We find nothing in the record to justify any inference that the fight, if' any, between Smith and Jess Davis lasted any certain limit, or that the jury could have been misled by the use of the word “immediately” in the charge. We find no exception anywhere reserved to the use of said word in that connection.

The law of principals, as applied to murder, is met when the facts show that one, without justification or extenuation, and upon malice aforethought, kills a human being, and the accused, being present and knowing the unlawful purpose of the slayer, aids'him by acts or encourages him by words or gestures to do such killing. Appellant is wrong in his contention that the court’s charge setting forth the above principle was not sufficient, and that it should have gone further and told the jury that appellant could not be1 convicted under the facts in this case unless he acted upon his own malice aforethought. The cases cited, viz., Grant v. State, 60 Tex. Cr. R. 358, 132 S. W. 352, Oates v. State, 51 Tex. Cr. R. 449, 103 S. W. 859, and Pharr v. State, 7 Tex. App. 472, have no application. There was no exception to paragraph 12 upon the ground that it did not tell the jury that the killing must have been upon malice aforethought. We look to the charge as a whole and find in other parts of same where the jury were explicitly told that the killing must have been upon malice aforethought.

We have gone over as carefully as we can each contention made, and, being unable to agree with any of them, the motion for rehearing will be overruled. 
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