
    MAXWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 26, 1912.)
    1. Homicide (§ 309) — Instructions — Degrees — Necessity.
    Where, in a prosecution for homicide, a blow claimed to have been struck by the deceased was not shown to have caused the accused either pain or bloodshed, and it was shown that any abuse or evil talk just before the killing- was by the accused rather than deceased, a refusal to charge on manslaughter was proper. -
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    2. Ceiminal Law (§ 426) — Evidence—Self-Serving Declarations.
    Where, in a prosecution for homicide, two persons were indicted as principals, the conversation or conduct of either of them on the morning after the commission of the crime was inadmissible on behalf of either, where they were of a self-serving character.
    [Ed. Note. — For other eases, .see Criminal Law, Cent. Dig. § 1011; Dec. Dig. § 426.]
    
      3. Homicide (§ 305) — Instructions — Principals — Support in Evidence.
    In a prosecution for homicide, evidence of words, acts, and conduct of accused and another indicted for the murder, both before and subsequent to the killing, ■helé sufficient to justify a charge as to who were principals, though entirely circumstantial and without the support of direct evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. g 305.)
    4. Homicide (§ 29) — Parties.
    Where one person killed another under a belief that he was making’ or about to make an attack upon a third person, the latter could not be convicted of the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. § 29.)
    5. Homicide (§ 29) — Parties.
    A person in whose presence another was killed could not be convicted for his murder, where she did not assist the one who did the killing by acts or words.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. § 29.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Dillie Maxwell was convicted of murder in the second degree, and appeals.
    Affirmed.
    J. H. Anderson and Nat Llewellyn, both of Marlin, for appellant. Frank Oltorf, County Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   HARPER, J.

Appellant was prosecuted under an indictment charging her with murder. When tried, she was convicted of murder in the second degree, and her punishment assessed at 10 years’ confinement in the penitentiary.

Appellant and deceased, Jim Baker, were living together as man and wife, and on the evening of the homicide went to Highbanlc, in Falls county. Dinah Young testified that a negro man at I-Iighbank came to appellant, and tried to get a knife from her, and she refused to give it to him. The state introduced this testimony to prove a knife was in her possession. Sam Wates and others testified that at Highbanlc they saw John Maxwell talking to appellant, and heard him ask her to go riding with him, she replying, “No; that her old man was in the store,” when John said, “Damn that, come on and go-. If he bothers me, I will kill the damned son of a hitch,” hut they did not go. In a short time appellant and deceased left High-bank, and Willie Ann Parker said as they passed her house, she overhearing their conversation, deceased said, “Come on, woman, you ain’t drunk.” “She told him: ‘No; I ain’t drunk. I was just doing that to find you out.’ He says, ‘Well, I have done found you out.’ So she went on down a piece further, and she says, T don’t want you, and, God damn you, I ain’t going to have you.’ ” Witness testified she did not live far from Jake Harris; and Jake testified as appellant and deceased passed his house he heard them talking, deceased sayiug, “I have §5,” when she replied, “I have $10,” when he-said, “ ‘That is good, if you have got $10.’ She replied to him, ‘You think I am drunk.’ He said to her, ‘You are trying to put a stall-on me.’ She said, ‘That is what I am doing.’ So they goes down the road, talking. I never understood anything more they said. Shortly after that I heard a loud talking-stop all at once. In a few minutes I heard somebody come running my way, and, when he got in the yard, it was that young man Jim Baker, and he says, ‘Mr. Harris! Mr. Harris!’ I said, ‘What is the matter?’ He-said, ‘Get me a doctor.’ I saw he was bleeding, and he said, ‘Get me a doctor.’ I went and got a chair, and told him to sit down, and he sat down, and I saw he was bleeding, and was going to die. I asked him tO' come down on the ground, and he came down on the ground. I got a pan of water and dipped my hand in to wash him, and he jumped up and holloed, ‘Oh! Oh!’ and goes-down on the ground. By that time up came Johnny and Lillie. Johnny comes inside, and Lillie goes down in front of the house. Lillie sa3fs : ‘That is my husband. My name is Lillie Maxwell.’ And Will says to her: ‘Don’t commence talking that kind of talk when you know you cut that man.’ Johnny says, ‘Where is that knife?’ She says, ‘Here it is.’ She hands him the knife through the fence. He was kicking then, and she said,. .‘That son of a bitch worked me hard in Limestone county last fall to help pay his-fine.’ She was talking about that boy, Jim Baker.” This witness is. corroborated by Will Neal and others.

Lucinda Sweeney testified that appellant on the night of the homicide said, “She was into it, and did not know what to do,” and asked her- what to do, when she advised her to tell the truth, when appellant replied, “Well, if I would tell them I killed that fellow, they would break my neck, or send me to Huntsville.”

Appellant testified in her own behalf, and' said when they were leaving Higlibank deceased struck her on the side of the head, and said he had a good mind to cut her throat; that Johnnie Maxwell ran up, and he and deceased had some words, and deceased threatened to kill her; that they went on down the road, and had passed Jake Harris’ house, and deceased commenced cutting at her, and Maxwell ran up and caught him, when deceased got loose and started towards her, and she fell down, when deceased ripped her waist with a knife, and Maxwell cut him, when deceased ran, Maxwell after him, and she after Maxwell.

It was shown by the testimony that, when deceased and appellant left Higlibank, Maxwell followed on behind them, hut was not with them when they passed Willie Ann Parker’s house, nor Harris’ house, and he was not seen with them from the time -they ■left Highbank until they all came back to Harris’ house.

The court did not err in failing to ■charge on manslaughter. The lick she says deceased struck her, and relied on to raise the issue of manslaughter, is not shown to have caused either pain or bloodshed. In addition to this, if struck, they passed on •down the road together, passing Parker’s house and the Harris house, and, according ■to the witnesses, deceased was saying nothing out of the way, while she was telling him, “God damn you, I have done found you out, and I ain’t going to have youand •right after the killing said, “That son of a bitch [referring to deceased] worked me hard ■in Limestone county last fall to help pay his •fine.” Her conduct on the occasion is not ■such as to raise the issue of manslaughter, ¡and the evidence would suggest that she had wearied of him and wanted John Maxwell, •presenting a strong motive for the crime.

It was shown that the morning after ■the killing, about 10 o’clock in the morning, appellant had a conversation with Bill Hello, and she complains that the court erred in refusing to permit such conversation and the words and conduct of Maxwell that morning to be introduced in evidence. The record shows that each of them are charged with this offense, and self-serving declarations or acts would not be admissible.

Appellant complains that the court erred in charging the law as to who are principals in the commission of an offense. This being a case, depending wholly on circumstantial evidence, the words, acts, and conduct of appellant and Maxwell just prior and just subsequent to the killing authorized the court to so charge. The complaint is that the state introduced no evidence connecting Maxwell with the offense.

The law is the case must be submitted as made by the whole testimony, and the court instructed the jury that if Maxwell killed him, and did so, believing that deceased was making or about to make an attack on her, appellant, with a knife, they would acquit her, and also instructed the jury that if Maxwell did the killing and appellant, though present, did not aid him by acts or words, or they had a reasonable doubt thereof, they would acquit her. This presented every theory raised by her testimony. The court fully charged the law applicable to a case of circumstantial evidence in language frequently approved by this court.

The testimony of Haley Maxwell, heard on the motion for new trial, does not support .the allegations in the motion for new trial. On the contrary, the evidence would disprove the allegations, and, if a new trial had been granted, the evidence of John Maxwell would not be available to her on another trial.

There being no error presented in the record, the judgment is affirmed.  