
    RASBERRY v. STATE.
    (No. 4279.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1917.)
    1. Homicide <&wkey;30(l) — Parties to Offense— “Principal.”
    On a charge of murder, mere presence of accused at the time and place of killing by a third person is not sufficient to constitute accused a principal, but it must be shown that he agreed to the commission of the offense, or aided or encouraged it by words or gestures within the meaning of the statute.
    [Ed. Note — Eor other cases, see Homicide, Cent. Dig. § 48; Dec. Dig. &wkey;>30(l).
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal Haw <&wkey;1091(9) — Bill of Exceptions — Sufficiency.
    A bill of exceptions, which quotes a requested instruction and recites that it was requested at the trial, before argument and before the charge was read, and that such requested instruction was refused and was not embodied in the charge as given, when approved without qualification by the trial judge, is sufficient under statute.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2818, 2831, 2943 ; Dec. Dig. &wkey;1091(9).]
    Appeal from District Court, Fisher County; John B. Thomas, Judge.
    Alfred Rasberry was convicted of murder, and he appeals.
    Reversed and remanded.
    J. F. Cunningham, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State..
   DAVIDSON, P. J.

This conviction was for murder with 25 years sentence ,in the penitentiary.

The court submitted the case for conviction upon the proposition that Will Human did the .killing, and appellant was present aiding him by acts and encouraging him by words or gestures to commit the offense, and, further, that appellant was a principal by reason of ,the fact that he had previously agreed to the commission of the offense and was present at the time of the killing. This was the state’s theory. Appellant, before the argument , began, asked an appropriate instruction to the effect that the mere presence of defendant at the time and place of. the difficulty was not sufficient to constitute him a principal, j but the evidence must show that the defendant did something which would bring him within the statutory rule constituting him a principal, and unless this was shown by the evidence ;to the exclusion of reasonable doubt, defendant would be entitled to a verdict of not guilty, even if the offense was committed by Will,Human. This was asked in connection with the main charge because the court had not embodied this proposition either in fact or in ¡substance in the main charge.

It is contended the bill of exceptions does not show that appellant ¡brought himself within the rule of our recent statute by excepting in the manner and form as therein required; that his bill Js not technically in conformity with that statute. In order that there may be no question about this matter, so far as the bill is concerned, ,it will be here reproduced:

“Be it remembered that on the trial of this cause, and before the court’s main charge was read to the jury, and before the argument began thereon, the defendant made and presented to the court his special instruction No. 1 as follows, to wit: * * * Gentlemen of the jury, you are instructed that the mere presence of the defendant at the place and time of the killing is not sufficient to show that he was a principal offender. But the evidence must go farther and show that the defendant either agreed to the commission of the offense, or aided by act, or encouraged by words or gestures, the said Will Human to kill the deceased, and unless you find from the evidence beyond a reasonable doubt that the defendant agreed to the commission of the offense, if any committed, by Will Human, or aided by acts or encouraged by words or gestures the said Will Human to kill the deceased, then .you will find the defendant not guilty, and that too even though you believe Will Human guilty of murder or manslaughter.
“Refused. Jno. B. Thomas, Judge.”

The bill further recites that appellant—

“asked the court to approve said charge and give it to the jury in connection with the main charge of the court, but the court refused to give said special instruction to the jury, and refused, to instruct in substance, the law embodied in said special charge in his main charge to the jury, and said special charge was not submitted to the jury, to all of which the defendant in open court excepted, and now tenders his bill of exceptions for approval.”

This bill is. approved by the judge as correct without qualification. We are of opinion that this bill is a sufficient compliance with the law in presenting this matter to the trial court. It recites the fact that the court did not embody this principle in his charge, and, because he did not do so, this special charge was requested, presenting that issue, and the court refused it, and all this occurred before the argument began, and before the charge was read to the jury. It would be difficult to understand how or why the trial court did not understand fully from this bill of exceptions that he had made this omission in his charge, and not only so, but that, when it was presented, he understood fully and refused to give it, and thereby, we suppose, holding that the issue was not raised. The bill recites that it was called to his attention by the charge and for the reason he had not embodied it in the general charge. The writer will not discredit the trial judge by stating that he failed to understand this, because he approves fully the bill of exceptions, which recites that he did understand it and refused to give it. The bill will be treated then as technically sufficient to call the court’s attention to it at the proper time and in the proper way, and is entitled to consideration on appeal.

Upon this issue, the State’s evidence, as to the immediate facts of the killing, was introduced through the witness Addie Bostick, daughter of deceased. The state also intro-dueed Mr. Pruitt and Ms wife as to some corroborative facts, showing the parties were together before they reached the place of the homicide. Miss Bostick was the only eyewitness. She is the daughter of deceased, and was with him at the time he was killed. Her testimony is to the effect that Human did the shooting, and the defendant - did not fire a shot. Her exact words are these:

“The other man did all the shooting. Just one of them did the shooting, and that was Iranian, the other man.”

The evidence further shows, for the state, that Iranian and appellant were brothers-in-law, and that Bostick had previously killed a brother of the defendant, who was also a brother-in-law of Human, and had also stated that Human was a cow thief and his wife was a whore. This seems to have been the first meeting after this information was conveyed to Human. Appellant and Human were seen together riding in the direction of where the killing occurred, coming down a mountainside; when they reached a certain point, they dismounted; that appellant was standing about 25 or 30 yards from Human at the time of the shooting. Miss Bostick testified she saw appellant standing back on the bank, doing nothing; that he was looking on, and she did not see him with a gun at that time, but after the shooting he came down to the brink of the bluff, and she then saw he had a gun. The evidence of the sheriff shows all of the shells whch were fired were fired by Human; he found them where tracks of Human were made, and where he was standing. There is no evidence that appellant fired, but it is shown he did not shoot.

The theory of the state, therefore, briefly stated, is that appellant and Human were acting together and therefore principals. This is denied by appellant, and there is evidence to sustain him. It is unnecessary to go into a detailed statement of the testimony. The question is raised that appellant, though present, was not a principal, and did nothing to encourage Human, and did not advise Mm to do. the killing, or do anything which would bring him within the purview of the statute with reference to principals. The explanation was that appellant and his brother-in-law were hunting an animal in that neighborhood which belonged to appellant and was in that pasture, and that the meeting was accidental, and that deceased began the difficulty. Whatever the jury or the court may have thought about it, the issue was raised, and the court not only did not give affirmatively this phase of the law, but refused a charge requested presenting it. Wherever an issue is presented for solution by the jury on the facts, an appropriate charge should be given, and if it is favorable to the defendant, an affirmative charge must be given, so the jury may pass directly upon that question in reaching their verdict. The solution of all questions of this sort is relegated to the jury under appropriate instructions. It cannot be solved by the court on the facts. It is his province and duty to charge the law, and the jury to decide the weight of the testimony and credibility of the witnesses. The court cannot refuse a charge because he may have agreed with the state’s side of the case, and thus withdraw from the consideration of the jury matters raised by the evidence which are favorable to the accused. Whatever the testimony may be, whether strong and cogent for the state, or with less strength for the defendant, if the issue is in the case it is the duty of the court to submit appellant’s side of it.

Because the court failed to so charge and' refused the special instruction requested, the judgment is reversed, and the cause remanded. 
      <&=s>E or other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     