
    CUKIERSKI v. STATE.
    
    (Court of Criminal Appeals of Texas.
    Jan. 15, 1913.)
    1. Homicide (§ 307) — Instructions—Principals — Assault.
    One is not entitled to a charge on simple assault, in that he only used his hands and feet, where by his own testimony he was helping one who was using a knife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 340) — Haemless Error — In-steuctions.
    Where a defendant was only convicted of manslaughter, he could not be prejudiced by instructions relating to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    3. Ceiminal Law (§ 761) — Misleading Instructions — Homicide.
    An instruction that “if you believe beyond a reasonable doubt that the defendant in a sudden transport of passion aroused by an adequate cause, either alone, or acting with W., under such circumstances as to constitute him a principal, killed deceased, you will find him guilty of manslaughter, and if you believe W. killed deceased, and have a reasonable doubt as to whether defendant acted as a principal, you cannot hold him responsible for W.’s acts,” is not objectionable as assuming that defendant acted either alone or as a principal in the commission of a homicide.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    4. Homicide (§ 340) — Harmless Error — Instructions.
    Where one was convicted of manslaughter, and to do so it was necessary to find that he was a principal with one W., an instruction on assault to murder, which was only to be considered if he was not found to be a principal, could not have prejudiced the defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Homicide (§ 310) — Instructions —Assault to Kill.
    Evidence held to warrant an instruction on assault to kill and aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    6. Criminal Law (§ 1169) — Harmless Error-Withdrawal of Evidence.
    Where a conversation of a principal was erroneously admitted in evidence, there was no prejudicial error where the court orally withdrew it, and in his charge instructed that it should not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    7. Criminal Law (§ 519) — Confessions— Evidence.
    A statement made to the county attorney by one after being sworn, and warned that he need not make any statement, and that it would be used as evidence against him, was properly admitted in evidence, and the jury properly instructed not to consider it if it was not freely and voluntarily made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. § 519.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Walter Cukierski was convicted of manslaughter, and he appeals.
    Affirmed.
    L. N. Frank and B. E. Cook, both of Stephenville, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see'same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
       Rehearing denied February 12, 1913.
    
   HARPER, J.

This is a companion case to that of Frank Wisnoski, 153 S. W. 316, decided at this term, and the evidence for the state is in the main the same, except the’ evidence went into more detail as to the part taken by this appellant in the difficulty.

Zeilinski testified in this case: “I saw defendant have a knife in his hands at the time the fight started, and he also had his knife in his hands at the time he was striking the deceased and when they were fighting. I could see the open knife in the hands of defendant at the time he was fighting and striking the deceased. I knew the knife, and can here now identify the knife exhibited as that of the defendant, and as the one he had open in his hands at the time of the fight, and as the same knife he was striking at deceased with during the time of the fight. The blade of the knife was open in the hands of defendant just as it is now. I had seen the defendant with the knife before this time pretty often. I was on the other side of deceased before he fell to the ground, and did not see any blood on his shoulder, and did not see any cut on his face or head. I was not in position to have seen it. I did, however, see defendant strike at deceased with this same knife, here exhibited, before deceased fell to the ground, and, after deceased had fallen to the ground, I saw defendant kicking him about his back and ‘bottom’’ parts. Deceased at the time he was being kicked was holding his hands over his head, and was lying on his side. The only thing I heard deceased say to defendant was, ‘What are you beating me for?’ At this time Frank Bida came up to defendant, and told him to-let deceased alone, and not kick him any more, and defendant then stepped back a little and stood there. When defendant had stopped kicking deceased and had stepped back a little from him, Frank Wisnoski came up to deceased, and told liim to get up, and then raised deceased up, and stuck his dirk in his breast. I here identify the dirk knife used by Wisnoski in stabbing deceased. I was standing right near deceased’s head at the time of the stabbing by Wisnoski and could see the knife. Wisnoski caught hold of deceased, and raised him up from the ground, and stuck the knife in him, and then threw him down on the ground again, and then said: ‘He needs a doctor.’ When Wis-noski threw deceased back on the ground, the blood from the wound on deceased flew over my pants. I was not watching defendant just as this happened, but he was standing back just a little from deceased. I heard nothing said between Wisnoski and defendant at this time, but defendant was talking. There was a ‘right smart’ racket going on at the time, and I could not state what was said by defendant to Wisnoski.”

The defendant testified: “When X heard the bicycle pop, we all stepped from the porch out to where the bicycle was standing; that is, Frank Wisnoski, Tom Mulkowski, myself, and some others. Out there we found Big Joe, Joe Schmidt, and John Czerwinski (the deceased). I did not say anything immediate after I got there, as Frank Wisnoski had come out and jumped on Big Joe, and asked who had cut the bicycle, and what it was cut for, and then I spoke, and said I see who cut it- — that it was John Czerwinski —and I then asked deceased what he had cut the wheel for, and he replied that he had cut it because he wanted to. Deceased at this time had his knife in his hand, opened, and I took the knife in my hand and examined it, all of us standing there around the bicycle. Frank Wisnoski had got the knife from deceased, and then handed it over to me. X examined it, and handed it over to "Frank Bida. I then told deceased he had to pay me for my bicycle. He then had his knife open in his hand, and said to me that he would pay me with that. At this I got scared a little, and didn’t say anything more. At this time Frank Bida got hold of deceased, and began shoving him away from the crowd. This after I had given deceased’s knife, over to Frank Bida. After Bida had shoved deceased off some little distance, John Zeilinski, who had been standing there by the bicycle with a knife in his hand (I could see the end of it in his hand), started on after Bida and the deceased, and took deceased away from Bida, and turned him around. X then ran up to see what he was doing, and to see who it was beating the deceased, or to see whether John Zeilinski was beating him or not, and, when I got there, I helped John Zeilin-ski beat the deceased. Frank Wisnoski at this time was still at the bicycle, and was quarreling with Big Joe. Frank Bida carried deceased about 40 feet from the crowd, pushing him along. As he was doing so, John Zeilinski started after them while I was still at the bicycle, and, after Zeilinski had got up to deceased and jumped on him, I also went up and helped Zeilinski, and wanted to see if he was beating him. Zeilinski had hit deceased a couple of times, and I also hit him a couple of times and knocked him down. This was when he was being shoved or pushed back away from Frank Bida, and after Frank Bida had turned him loose and had stepped away from him. Zeilinski got deceased loose from Frank Bida, and was hitting him and shoving him back towards the way he had come with Bida, when I came up to them, and hit deceased a couple of licks, and finally knocked him down and then kicked him. I also kicked him before I knocked him down. During this time, and before I had hit deceased, John Zeilinski had out his knife, and had cut deceased with the knife on top of the head, and then cut him on the arm or shoulder. I did not see the blade of the knife at this time, but I saw that Zeilinski had the knife in his hand. Deceased fell right at the place where Zeilinski had hit him with the knife, and where I was when I hit him with my hand. I kicked the deceased after he was down on the ground. As deceased fell to the ground, he looked to me like he was trying to get up, and then it was.that I kicked him. Xle seemed to be trying to get up, and I kicked him at that time, and after Zeilinski had hit him with the knife. * * * Deceased fell sorter on his back, and towards the house of Andrew Caczor, or facing the Oaezor house, and, after he fell, he got his arm over his head, and seemed to be trying to get up again. I saw Frank Wisnoski when he came up to where deceased was lying on the ground, but do'not remember to have seen any one come up with him. I was in plain view of Wis-noski when he came up to deceased, and saw him when he raised deceased up from the ground with his left hand. I saw the knife Wisnoski had in his right hand,, and could plainly see his right hand and his right arm as he raised deceased with his left nand, but I did not see the knife as he stooped to take hold of deceased, and did not see the knife as he raised deceased up from the ground. After Wisnoski stooped down and got hold of deceased, I didn’t see the knife in his hand any more, as I was on the other side of him from deceased. Wisnoski just picked deceased up from the ground, raised him up, and then turned him loose, and he fell to the ground again. It seemed to me not more than a second of time, in doing so. When deceased fell back to the ground, Wisnoski then said, ‘He needs a doctor now,’ and Wisnoski then went away from deceased and got on his wheel and went after a doctor.”

Appellant Cukierski’s knife was found on the ground near the scene of the difficulty by the officers, and on the day after the killing appellant made the following statement: “Walter Cukierski, being duly sworn, testi-Sed as follows: I have been warned by E. O. Cos, to whom tbis statement is made, that I do not have to make any statement that will in any way incriminate me, and that I do not have to make a statement about who killed John Czerwinski last night, and that, if I do make such statement, it can and will be used in evidence against me upon a trial for killing said party and not for me, and make this statement voluntarily o'f my own accord: My name is Walter Cukfer-ski. I was 17 years old sis months ago. I was at Jake Sabota’s house last night. ■Somebody stuck a knife in my bicycle tire. I asked John Czerwinski what he did it for, and he said just because he wanted to. I told him I had some witnesses, and he would have to pay me for it. Erank Wisnoski said to John, ‘What did you do it for, you dirty son of a bitch?’ and John replied, ‘Just because I wanted toand said, ‘Who are you calling a son of a bitch?’ Erank said to John, T am calling you a son of a bitch.’ John then made a break to get to Erank. Frank had a dirk in his hand, and said to John, ‘If you want anything, you’ll get it ■right here.’ Frank had his hands folded, and had the dirk in his right hand. About this time John Zeilinski jumped on John an'd struck him and several others surrounded him. Some were trying to stop the trouble, and others were trying to engage in it. John had a knife open in his hand. He tried to defend himself, but I never saw him try to cut anybody with it. I never saw John’s knife any more after the fight started. Frank Bida started to take John off before John Zeilinski jumped on him, and carried him five or six steps, and John was trying to get away from him. He got loose from Frank Bida, and John Zeilinski and Tom Mulkowski jumped on John Czerwinski. John Zeilinski struck him. I was trying to hit him, but couldn’t get to him. Frank Wisnoski was mixed up in the fight. I could not see what was doing. There was no one else besides myself, John Zeilinski, Frank Wisnoski, and Tom Mulkowski, trying to fight John Czerwinski. The knife showed to me here is my knife. I did not have it during the fight. It was with my tools in the bicycle. I do not know how it came to be out in the street where it was found. The knife with the corkscrew attachment is Frank Wisnoski’s. I don’t know whose the other knife is.- We all got in after him when he backed down the street east. It seemed as if he would make a getaway, and we were after him. John Zeilinski struck John just before he fell, struck him with both hands, but I don’t know what he hit him with or where he struck him. We were all right in a bunch, and I could not tell what each one was doing. Frank Wisnoski was right there when he fell, about five steps away. He had his dirk in his hand. He walked up to where John was lying on his side, took hold of him, and said don’t sulk. He raised him up, and then laid him back down, and said, ‘He’s got enough.’ He said, ‘He’s dead. I’ll go and get a doctor.’ Frank Wisnoski still had his dirk in his right hand when he raised him up. This was a cross-handled two-edged ‘stiletto.’ I had seen him with this stiletto two or three weeks ago at his own house. [Signed] W. Cukierski.”

The court charged on murder in the first and second degree, manslaughter, assault to murder, ■ and aggravated assault; the jury finding this defendant guilty of manslaughter. Appellant insists that the court should also have charged the jury the law of simple assault, as this appellant says he only struck deceased with his hands and knuckles. Take appellant’s own testimony, and he makes himself a principal with Zeilinski, and, if Zeilinski was doing the acts appellant states he was ‘ doing, Zeilinski would be guilty of a higher grade of offense than simple assault, and, 'as he admits he joined in with him, the offense of appellant, even though he only used his hands and feet as claimed by him, would be guilty of at least aggravated assault.

We do not deem it necessary to discuss those bills of exception complaining of the charge of the court, in so far as they relate to the charge on murder in either degree, as appellant was adjudged guilty of only manslaughter, and such error, if error there be, could not have influenced the finding of the jury.

The court charged the jury: “Now, if you believe from the evidence in this case beyond a reasonable doubt that the defendant Walter Oukierski in the county of Erath and state of Texas on or about the 26th day of May, 1912, in a sudden transport of passion aroused by an adequate cause, as the same is hereinbefore defined, either alone, or acting with Frank Wisnoski, under such circumstances as to constitute him a principal, as that term is hereinabove defined, with intent to kill, did unlawfully cut and stab John Czerwinski, and thereby kill him, then you will find the defendant guilty of manslaughter, and assess his punishment at confinement in the penitentiary for not less than two nor more than five years, in your discretion. * * * Now, if you believe from the evidence in this ease, gentlemen, that Frank Wisnoski inflicted the wound on the deceased with a knife, which produced his death, and if you should have a reasonable doubt as to whether or not the defendant acted with the said Frank Wisnoski under such circumstances as to constitute him a principal, as that term is hereinbefore defined, then you are instructed that the defendant would not be responsible for the acts of the said Frank Wisnoski in killing the deceased.” This charge is not subject to the criticism that it “assumes that the defendant acted either alone or as principal with Wisnoski in the commission of- an- unlawful horn-icicle.” In the charge the jury is required to find, beyond a reasonable doubt, that defendant did an unlawful act and tells them, if they have a reasonable doubt, he would not be guilty. The court in his charge had properly defined who are principals in the commission of an offense, and the charge taken as a whole is not subject to the criticism leveled at it in this bill of exception.

The fact that the court charged the jury on assault to murder would not be injurious to appellant. It was only in the event that the jury should find, or have a reasonable doubt of the fact, that he acted with Wisnoski in killing the deceased, were they authorized to consider whether or not he was guilty of an assault to murder, or aggravated assault in acting with Zeilinski. It seems the jury found that he had acted with Wis-noski in a way to make him a principal in taking the life of deceased, and the fact that the court charged on these lesser degrees would not be injurious to defendant. There is no complaint that the charges on assault to murder or aggravated assault do not properly submit these issues, but the complaint is that these issues were not in the ease.

If deceased was not acting with Wis-noski,. as contended by him, he certainly was acting with Zeilinski as testified to by him, and his conduct as testified to by him, if Zeilinski did what appellant says, would render appellant guilty of either assault to murder or aggravated assault. Consequently the court did not err in submitting these issues to the jury. Under appellant’s confession, the jury would be authorized to find that he was acting with Wisnoski. Under his testimony on this trial, he would deny that he and Wisnoski were acting together, but he admits acting with Zeilinski, and the court acted properly in submitting all these theories to the jury. The evidence would disclose that Wisnoski killed deceased, and, if appellant was not acting with him, yet he says he joined in with Zeilinski, and the acts of Zeilinski as testified to by appellant would render him guilty of assault to murder or aggravated assault.

The conversation of Prank Wisnoski with Frank Wenick in the afternoon was not admissible against appellant, and the court should not have admitted it. However, the court orally withdrew the testimony from the jury, and then in his charge instructed them: “I withdraw from your consideration, gentlemen, the evidence of Frank Wen-ick to the effect that about 5 o’clock in the evening, prior to the homicide that night, he, the said Frank Wenick, had a conversation with Frank Wisnoski, and what said Frank Wisnoski stated to him in said conversation, and I also withdraw from your consideration any act of Frank Wisnoski in exhibiting the dirk knife, if any, to the said Frank Wenick at said time. You will not consider these declarations and acts of the said Frank Wisnoski for any purpose. They are not evidence of the defendant’s guilt, and cannot be so considered by you.” Under such circumstances, the testimony is not of that hurtful nature as would call for a reversal of the ease, as it was withdrawn from and the jury instructed not to consider it.

The statement of defendant made to the county attorney the day after the homicide was properly admitted in evidence. It complies in every way with the requirements of this court as announced in Henzen v. State, 62 Tex. Cr. R. 336, 137 S. W. 1141, and the court in his charge properly instructed the jury not to consider it if it was not freely and voluntarily made.

The judgment is affirmed.  