
    LAKE v. STATE.
    (No. 3989.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Cbiminal Law <&wkey;792(2) — Aiding in Crime — ‘ ‘Principal’ ’ — Effect.
    Under Pen. Code 1911, art. 74, making all persons guilty of acting together in the commission of an offense principals therein, and article 75, providing that, when an offense is actually committed by one, another who is present knowing the unlawful intent and aids by acts or encourages by words or gestures the one actually engaged in the commission of the offense is a principal, and article 78, providing that any person who advises or agrees to the commission of an offense is a principal, whether he aids or not, when the evidence shows any one of such conditions the court must charge and apply the law of principals and submit such question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. <&wkey; 792(2).
    For other definitions, see Words and Phrases, First and Second Series, Principal.)
    2. Homicide <&wkey;281 — Murdeb—Principals— Evidence — Sufficiency.
    Evidence in a prosecution for murder held to justify submission to the jury of the issue of the law of principals where defendant stood by and knew the unlawful intent, but failed to prevent the commission of the crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 573; Dec. Dig. &wkey;5281.)
    3. Homicide <&wkey;281 — Muedek—Principals— Evidence — Sufficiency.
    Evidence in a prosecution for murder held insufficient to warrant submission of the issues whether defendant kept watch so as to prevent interruption of the one committing the offense by which under Pen. Code 1911, art. 75, he would have been .a principal, or whether he procured arms to assist in the commission of the offense by which under article 76 he would have been a principal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 573; Dec. Dig. ■&wkey;>281.)
    4. Homicide &wkey;>118(2) — Defenses—Self-Defense — -Beteeat.
    Where one armed with a shotgun is pursued by another who is unarmed, and whom 'the first person knows to be unarmed, it is the duty of the first to retreat or to use any other means to prevent an injury to himself, rather than to shoot and kill the pursuer.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. § 169; Dec. Dig. &wkey;>118(2).]
    
      5. Homicide <&wkey;244(l) — Murdeb—Defenses-Pbovoking the Difficulty — Evidence.
    Evidence held insufficient to raise the issue of provoking the difficulty in a prosecution for murder.
    [Ed. ..Note. — For other cases, see Homicide, Cent. Dig. § 507; Dec. Dig. <@=5244(1).]
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    J. T. Lake was convicted of murder, and he appeals.
    Reversed and remanded.
    Harris & Britton, of Quitman, and J. H. Beavers and W. G. Russell, both of Winns-boro, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction of murder, with 12 years in the penitentiary assessed as the punishment, this appeal is prosecuted. Because the case must be reversed, we will not specially discuss the testimony. We will make merely a general statement. On some points the testimony is in direct conflict; that of appellant himself contradicting the other disinterested eyewitnesses. It will not be necessary to state this conflict.

The killing occurred late one evening. About 3 o’clock that evening appellant took his neighbor and friend Mr. Black from Quit-man, where they both lived, in his buggy about a mile east, to his farm, to get roasting ears and peas. In going they met deceased, Louis Thom, who, with Mr. Chreitzbergh, was in deceased’s buggy going towards Quit-man. Chreitzbergh was quite drunk and sick therefrom. Appellant suggested to them not to go to Quitman in that condition, for they might be arrested. He asked deceased if he had any whisky. Deceased said not, but that, if he and Mr. Black would take Chreitz-bergh and go to a certain designated point and wait, he would go get some liquor and meet them there in a few minutes, which he did. Deceased also told them if they met Moore and Kendrick, to tell them to go to said meeting point, which was at or near Dr. Conger’s pasture. Deceased soon met all these parties at the designated place, bringing with him raw alcohol. At appellant’s suggestion, deceased and Mr. Black went to a negro’s house nearby, who was appellant’s tenant, where they divided the alcohol in two bottles, diluted one with water and sugar, and returned with both to the crowd. They all, except Chreitzbergh, proceeded to drink the liquor freely, and the evidence justifies the conclusion that they all became more or less affected thereby. After drinking and talking some time, Chreitzbergh and Kendrick got in one of the buggies and left the others.

Soon afterwards trouble arose between appellant and deceased, which resulted in a fight. From the testimony of the state’s witnesses Moore and Black it was caused by ap-. ■ pellant calling deceased a G-d-s-of a b-. Deceased resented this, and struck appellant in the face with his fist. Moore got hold of deceased, and Black of appellant and tried to keep them apart and from further fighting. Appellant took the little end of the buggy whip and .repeatedly attempted to strike deceased with the butt end of it, but was prevented and the whip taken from him by Black. 1-Ie then got an iron pin or rod out of his buggy and attempted to strike deceased with that, but was prevented, and this also taken from him by Black. However, in the mSISe deceased struck appellant at least twice more in the face with his fist. The licks bruised appellant’s face, and one lick broke the skin above the eye and' caused blood to flow. More or less talk was indulged between the parties at the time; appellant telling deceased that he was not able to fight him and had nothing to fight him with. Deceased replied that he could whip him and the whole d — ■— Lake family, repeating this a time or two. Appellant got in his buggy, started off and said: “I will see if you can whip the whole Lake family.” Deceased in a friendly manner tried to pacify appellant, but without success.

Appellant alone in his buggy, leaving his friend Black, drove rapidly back to his home at Quitman, about a mile. He there procured his double-barreled shotgun, put it in his buggy, and drove up to his son Elbert’s tailor shop for him. He found his son’s shop closed and locked, and then started directly back to the scene of the fight, where he had left deceased. Elbert, his son, had been out east to his pasture to procure and drive back his milk cow. They met, Elbert on horseback, and appellant in his buggy with his shotgun. They stopped and talked some considerable length of time; appellant telling his son why his face was bruised and bleeding, and that deceased caused it. While talking, the sheriff, Williams, and his deputy, Butler, going east from Quitman, came upon them. They stopped and talked with appellant and his son some time. After the four parleyed some time the sheriff told them he would go and investigate the matter. They all went back together to where the fight occurred. When they reached the gate leading into Dr. Conger’s pasture, the sheriff got down off of his horse, opened the gate, when all the parties, it seems, went in. The sheriff left his horse there unhitched, took the gun out of appellant’s buggy, and walked up the road, meeting deceased and Chreitzbergh in deceased’s buggy, and Kendrick and Moore following behind in another buggy. However, Elbert rode on from the gate, meeting these parties just ahead of the sheriff. When he met Chreitzbergh and deceased, he asked, in substance, who had beaten up his father. They both told him that deceased had. Appellant had already told him this. The sheriff, walking, reached these parties about this time, and ordered Chreitzbergh, who had gotten out of the buggy, to throw up his hands and consider himself under arrest. Chreitzbergh immediately complied, and the sheriff searched him, finding no arms upon him. He thereupon ordered deceased' out of the buggy and to throw up his hands and consider himself under arrest, which deceased promptly did, and he searched him, finding two pocketknives in his pocket, and took both of them off of deceased. He then proceeded back further to the next buggy, where Moore and Kendrick were. He ordered Moore to throw up his hands and consider himself under arrest, with which Moore promptly complied; and he then proceeded to search Moore, finding no arms upon him. Moore inquired why he was arrested and searched. The sheriff responded because of his being drunk and fighting. Moore denied that he had had any fight or was drunk. Then a controversy arose between them. The sheriff presented the gun which he had in his hands towards Moore as if to shoot him. Deceased and Moore, seeing this, evidently believed that the sheriff intended to shoot and kill Moore. Deceased thereupon grabbed the barrel of the shotgun and shoved it so that, if it was discharged, it would not strike Moore. Thereupon the sheriff pulled his pistol, he said, with the intention of killing deceased. Moore and deceased then grabbed the sheriff’s pistol and hand in which he held it, in the struggle holding it in such a way that, if discharged, it would strike neither of them; they declaring at the time that they had no intention of hurting the sheriff, but were seeking to prevent him from killing either of them. While all this struggle was going on, Chreitzbergh succeeded in wrenching the gun from the sheriff, and, when Elbert attempted to interfere, threw the gun down on him and stopped him. In the meantime the appellant and the deputy, Butler, had reached the scene, and saw and heard, most of what occurred at the time. Butler attempted to get the sheriff’s pistol; and, when he did, Moore and deceased ceased their struggle for it. Elbert at this time had wrenched the gun from Chreitzbergh, presented it as if to shoot Moore, Chreitzbergh, and deceased, and ordered them to scatter, telling them that, if they did not, he would kill all of them. They promptly scattered. Butler appealed to him for God’s sake not to shoot. He thereupon lowered the gun. Deceased at once ran to his buggy, jumped in it, put whip to his horses, ran out said gate to the road running north, evidently only intending to avoid being killed. Elbert and his father took after him; Elbert having the shotgun, it is not certain whether Elbert’s horse was right there at the time or not, but, if not, Butler’s was near by, and he got on Butler’s horse and took after deceased. Appellant also soon reached the horse Elbert had ridden to the scene, mounted him, and rapidly followed Elbert, after deceased. Deceased ran up this road a few hundred yards, whipping his horses and seeking to avoid being killed. Elbert soon caught up with the buggy and waved the gun in towards deceased in the buggy. The 'buggy top and side curtains were up. Elbert was a part of the time alongside deceased’s buggy, and sometimes behind it, appellant following rapidly on his horse; and he testified that he saw his son and the buggy of deceased the whole of the time, the collision of the buggies, and the killing.

Mr. Cowan, a wholly disinterested witness, was coming from the west in his no top buggy along the road which intersected the road running north and south, intending to go this road north. Mr. Wright’s place was in the comer of these roads. His house fronted north. Just as Cowan turned from the east and west road into the north and south road, and before his buggy had passed the corner clear, the deceased’s buggy and team ran into and broke down his left hind wheel. The collision threw deceased’s right horse down, his feet becoming entangled in Cowan’s buggy wheel, so that he could not get up, and deceased’s other horse got out from under the trace and reversed his position, both buggies immediately stopping when the crash occurred. Cowan jumped out of his buggy, went back a few paces south, and saw and testified to all that occurred thereafter. He said: That Elbert jumped off of his horse, ran around to deceased’s buggy, and, as deceased was in the act of getting out of his buggy, with one hand hold of the buggy top, and the other on the dashboard, or wheel, Elbert, with the shotgun in both hands, struck deceased therewith an overhand lick on the center of his head; staggering deceased to his knees, and then ran south. Deceased ran, following. The lick made a ghastly wound on the head of the deceased, cutting the skin for some inches, from which blood flowed. Both parties ran south some 30 or 40 steps as fast as they could, deceased getting no nearer than about 10 steps from Elbert. That after they had run this distance, and were still running, Elbert wheeled and shot deceased in his stomach in the left side, from which he instantly fell, and a few hours later .died. That deceased, in running, following Elbert, had nothing in his hands, and was saying nothing and doing nothing except running. Elbert said nothing to deceased after he struck him in the head with the gun. Mr, Cowan testified:

“The next thing that was done the defendant' came running up and said: ‘Let me have that gun; let’s get that other white faced s-of a b-’ ” (evidently referring to Moore). That appellant was on his horse and rode up there. That Elbert then went to and got his horse, and they both rode back down south together. “In going from there defendant passed where the deceased was lying, and he said to him: ‘Oh, yes, you white headed s-of a b — , you said you could whip all three oí. the Lakes. Now, we have got you where we want you.’ They then rode on down the lane, going south.”

Mrs. Wright testified that she saw the collision, and i;hat, when Elbert got off! his horse, he said:

“G-d-you, we have got you now. See whether you can whip all three of the Lakes.”

At this time she said Elbert was running towards deceased and had the barrel of the gun pointing towards deceased. She was standing in the door of her house, and said she then closed the door, and did not see the parties again until after the shot was fired, which was soon afterwards. Soon after the shot was fired she looked out of the window and saw deceased on the ground. She phoned to town, then proceeded to get water and went out to deceased’s assistance.

Appellant denied that he went up to the scene of the killing, and denied saying what Gowan swore he said. He claimed that he stopped back in the lane near the negro house and saw the race between deceased and his son, the collision with Cowan’s buggy and all the other occurrences, including the shooting, and there awaited Elbert, and that, when Elbert reached him, they went back further south, meeting the sheriff, his deputy, and Moore, who were some distance back down the lane walking north.

The indictment, in the usual allegations', in the first count charged that the appellant killed the deceased. In the second count he was charged as an accomplice in the killing. The second count was abandoned and dismissed, and he was tried only on the first. The court submitted murder, manslaughter, and self-defense. He also charged the law of principals, or attempted to do so, and provoking the difficulty. The court’s charge is attacked by appellant on these points on many grounds. It is unnecessary to take them up separately.

The statute is (P. O. art. 74) “all persons are principals who are guilty of acting together in the commission of an offense” ; and (article 75) when an offense is actually committed by one, and another is present, and, knowing the unlawful intent, aids by acts, or encourages by words or gestures, the one actually engaged in the commission of the unlawful act, he is a principal; also (article 78) any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act. These articles of our Code have been construed and applied many times by the decisions-of this court. Where the testimony, positive and circumstantial, one or both, in behalf of the state, as it does in this case, sufficiently raises the question that an accused has conspired with another to kill a person, or, knowing his unlawful intent to kill, aids him by acts, or encourages him by words or gestures, to kill, he may be convicted as a principal, even though he may not at the time of the killing be bodily in the immediate presence of the actual slayer, it becomes’ the duty of the trial court to charge and apply the law of principals and properly submit the issue to the jury for a finding. In the recent cases of Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1144, Gonzales v. State, 74 Tex. Cr. R. 460, 171 S. W. 1146, and Dillard v. State, 177 S. W. 104, and others, we have reviewed and discussed many of the cases and charges on this subject, and expressly sustained charges wherein the jury were told under what circumstances an accused would be a principal, even though he was not bodily present when the fatal shot was actually fired. We think it altogether unnecessary to again discuss this question, herein or review the cases.

The testimony rather forcibly tends to show that appellant may have advised his son, Elbert, to kill deceased, or agreed thereto, and that they conspired to kill him, and acted together in doing so, and that by his acts and conduct he aided and encouraged him in the killing, and thereby became and was a principal in the killing. What we say herein is not to be taken nor used in another trial that the jury should so find, but merely that the evidence raises these issues, and that they should be properly submitted to the jury for their finding. We think the testimony of the eyewitnesses to-the killing would show, if believed by the jury, that appellant was in such proximity to his son at the time of the killing as, in contemplation of law and in fact, to be actually present at the time, even if his own testimony itself would not so place him. But, as stated above, the testimony would authorize and require the court to submit the question of whether or not he was a principal, even if it could be claimed he was not bodily present at the exact time and immediate-place of the killing, under the circumstances-of this case.

It is true article 75, P. C., provides-that any one who keeps watch so as to prevent the interruption of the one committing the offense, and article 76 provides that any one who procures arms to assist in the commission of an offense, is also a principal; but, having carefully studied the testimony herein, we are of the opinion that it raises neither of these issues, and, as the court submitted both of them, and authorized the jury to convict appellant if they believed either, such charge is a material and fatal error to this conviction, and necessarily results in a reversal.

The testimony, positive and circumstantial, was sufficient to show that appellant became ■ angry and entertained malice against deceased because deceased had struck him in the-face with his fist, etc., in the fight, that he deliberately went to his home, got his gun, procured and induced his son to return to ■ the scene of where the fight occurred for the purpose and with the intention of wreaking his vengeance on the deceased to the extent of killing him or having his son do so, and that what was said between him and his son when he met him and their going back together, and what they both and each did after again getting to deceased, and what he did and said just after his son killed him, was sufficient to raise the issue and require the submission of the question to the jury of whether or not he was a principal.

It is very doubtful if self-defense by •appellant’s son, Elbert, was raised by the evidence so as to authorize or require the court to submit that question to the jury. The uneontradicted testimony shows that, when the sheriff told deceased he was under arrest, he searched him, and found no arms whatever upon him except two pocketknives, and that he then took possession of them and took them from deceased. This was done In the immediate presence of appellant’s son, Elbert. When deceased fled, it is evident that he did so for the sole purpose of avoiding being killed by Elbert or the sheriff. From that time on until he was killed it was not shown that he attacked Elbert in any way or with anything. The utmost that he did was because of the un.provoked and brutal act of Elbert in striking him in the head with the shotgun as he was in the act of getting out of his buggy •and staggering him to his knees thereby, and then running to take after him. He is shown positively to have had nothing in his hands or about his' person with which he could have inflicted death or any serious injury upon Elbert, and that he got no nearer in the chase than 10 steps from him, when he was shot and killed. So that, if the question of self-defense was raised at all, it was Elbert’s duty under the law to have resorted to all other means for preventing any injury upon him by deceased before he had the right to shoot and kill him, and the evidence fails to show that he resorted to any other means whatsoever. P. 0. art. 1107; Kendall v. State, 8 Tex. App. 569; Freeman v. State, 40 Tex. Cr. R, 545, 46 S. W. 641, 51 S. W. 230; Vinson v. State, 55 Tex. Cr. R. 493, 117 S. W. 846; Foster v. State, 11 Tex. App. 109; Jordan v. State, 11 Tex. App. 450; Hunnicutt v. State, 20 Tex. App. 645; and many other cases to the same effect.

The evidence did not raise the issue of provoking the difficulty. Even if self-defense was raised, it was error in the court to submit any question of provoking the difficulty.

Appellant’s bills to the exclusion of certain testimony and to the questions asked by the district attorney as presented by his bills show no error. It is unnecessary to state or discuss them.

For the error of the court in submitting to the jury that they might find appellant guilty if he kept watch or furnished the gun to Elbert with which the killing was done, and provoking the difficulty, if self-defense was raised, the judgment is reversed, and the cause remanded for a new trial. 
      (S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      d&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     