
    SOUTHALL v. STATE.
    (No. 3672.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Criminal Law <@=>422' — Evidence—Declarations oe Third Parties.
    Where defendant and three other boys were together when one of them made an assault, and were also together some time prior to the assault, and in such a position as to lead the jury to believe that defendant could have and did hear a remark made by one of the crowd that they would get the prosecuting witness on his way home, such remark was admissible on the question of whether defendant was a principal in the commission of the assault.
    [Ed. _Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ '984-988; Dee. Dig. <@=> 422.]
    2'. Criminal Law <@=5418 — Evidence—Declarations in Defendant’s Presence.
    On a trial for assaulting a party while he was on his way home in G.’s buggy, evidence that before starting for home G. approached him and said, “Come on and let’s go home,” and that the assaulted party responded, “All right,” was admissible over the objection that defendant was not present, where it appeared that he was near enough that the assaulted party heard a remark made by him or one of his companions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 96S-972; Dec. Dig. <@=> 418.]
    3.Criminal Law <@=>423 — Evidence—Declarations of Third Parties.
    Where, on a trial for assault involving a dispute as to whether defendant was a principal in the commission of the assault by W., the evidence placed defendant where he could and probably did hear arrangements for the assaulted party to ride home with G., and showed that he was with W. when W. and his companions placed their buggies so that G. could not pass, and that, when the prosecuting witness struck W. with a plank and knocked him down, defendant jerked the plank from the prosecuting witness, evidence that, when G. drove up to the point where the road was blocked by the buggies, W. told him to tell the prosecuting witness to get out and that he was going to whip him, was admissible on the issue of whether there was a premeditated assault, whether there was a conspiracy between defendant, W., and their companions to bring about the assault, and whether, with a knowledge of these facts, defendant so conducted himself as to become a principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dee. Dig. <@=> 423.]
    4. Criminal Law <@=>423— Evidence — Acts and Declarations of Conspirators.
    Evidence as to what W. did to the prosecuting witness after he ran away, pursued by W., was admissible over the objection that defendant was not present, if he was a principal in the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dee. Dig. <@=> 423.]
    5. Criminal Law <@=^427 — Parties — Evidence.
    Where the evidence showed that after the assaulted party ran, pursued by W., defendant and W.’s other companions followed after them, and when they came up with W. and the assaulted party remarked that W. ought to beat such party’s head off, this was a strong circumstance tending to show that defendant was present and lending encouragement to W. in the commission of the assault and guilty of such conduct as would make him principal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <@=> 427.]
    6. Criminal Law <@==>419, 420 — Evidence — Hearsay.
    Where an assaulted party testified that W. beat him with a fence rail, and that he knew it was a fence rail because one was found on the ground the next morning with blood on it, but on cross-examination it appeared that he did not go back to the scene of difficulty or see the rail, but that G. went back and found the rail and saw the blood, the assaulted party should not have been permitted to testify as to what he learned from G.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@=>419, 420.]
    7. Criminal Law <@=>1169 — Harmless Error' —Admission of Evidence.
    The admission of his testimony concerning the fence rail was not reversible error, where G. testified to the same facts, and there was no evidence to the contrary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=>1169.]
    8. Assault and Battery <@=>92 — Evidence-Weight and Sufficiency.
    On a trial for assault, evidence as to whether defendant was a principal in the offense or an innocent bystander held, to support a verdict of guilty.
    LEd. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. <@=> 92.]
    9. Assault and Battery <@=>92 — Evidence— Weight and Sufficiency.
    On a trial for aggravated assault, evidence held sufficient to show a premeditated plan to waylay an assaulted party, and that he was waylaid and a fight forced at a point selected by defendant and his companions.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. <@=> 92.]
    Appeal from Johnson County Court; G. Jay Jackson, Judge.
    
      Uniee Southall was convicted of aggravated assault, and he appeals.
    Affirmed.
    Johnson & Harrell, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction for aggravated assault. Under this record there could he no question that Otis Woods did make an aggravated assault upon M. M. Wilshire; the only contested issue in the case being whether or not appellant’s conduct on that occasion was such as to make him a principal in the commission of the offense.

The undisputed testimony in the case would show a number of young gentlemen had attended a moving picture show at Burleson. After the show Wilshire asked Wood Haynes if he knew when Miller was coming back. Otis Woods responded, “I don’t know anything about him.” Wilshire said, “I was not speaking to you,” when Wood cursed him, and invited him to go behind the stores, when he would whip him. It is made to appear, by defendant’s testimony, that at this time appellant advised Woods to desist, and Woods said he would if Wilshire did not want to fight. Wilshire retired into a restaurant, and Woods, appellant, Wyatt Hunt, and Travis Brown got together on the gallery of the restaurant. Several witnesses testify, while these four boys were together, some one said, referring to Wilshire, “We will get him, or I will get him on his road home.” Appellant accepted the bills as filed by the court, and in the qualification the court says the evidence shows “that at the time such remarks were made appellant, Otis Woods, Wyatt Hunt, and Travis Brown were together in front of the restaurant, and that the remark came from the crowd so bunched up.” As qualified by the court, these bills present no error. All four were together when the assault was made by Woods, and, the testimony showing that, if appellant did not make the remark himself, he was standing in such proximity as to lead a jury to believe that he could have and did hear it, it would be material testimony on the issue of whether or not appellant was a principal in the commission of the offense.

There are also several bills in the record objecting to the admissibility of a statement made by Gulley to Wilshire while he was in the restaurant and appellant and the other young men were on the gallery. It is made to appear by the testimony that Wilshire, instead of going to his own home to avoid a difficulty, went with Gulley in Gulley’s buggy. After Wilshire had stayed in the restaurant for some time, Gulley approached him and said, “Come on and let’s go home,” to which Wilshire responded, “All right.” Appellant objected to this on the ground that he was not present when the language was used. The record discloses that appellant and the other young men were on the gallery of the restaurant at the time; that Wilshire could and did hear what was said by them when the remark was made, “We or I will get him on his way home,” and consequently appellant and those with him were in such a position that they could, and probably did, hear what was said. The record further discloses that, when Wilshire and Gulley got in the buggy and started and had gone about two miles, appellant, Woods, Hunt, and Brown were in buggies in the forks of the road, their buggies being so placed that it was impossible for Gulley to drive on; that Woods asked him if Wilshire was in the buggy, and, upon being answered in the affirmative, said, “Tell Wilshire to get out; I am going to whip him.” Appellant being placed by the evidence in a position where he could and probably did hear the arrangements made between Gulley and Wil-shire for Wilshire to accompany Gulley home, and appellant also being in company with Woods on Gulley’s road home at the time the buggies were so placed that Gulley could not pass, and Woods said to Gulley, “Tell Wilshire to get out; I am going to whip him,” the testimony was admissible on the issue of whether or not there was a premeditated assault, and, if there was a conspiracy between appellant, Woods, and the other two young gentlemen to so place themselves in the road as to bring it about, and whether or not appellant, with a knowledge of these facts, so conducted himself at the time of the assault as to render himself a principal in the offense committed by Woods. The state’s evidence would show, when Wilshire struck Woods with a plank and knocked him down, appellant jerked the plank from Wilshire and handed it to Woods. Appellant admits getting the plank from Wilshire, hut says he did not hand it to Woods; that Woods jerked it out of his hand. The testimony objected to was properly admitted. Holden v. State, 18 Tex. App. 106; La Grone v. State, 61 Tex. Cr. R. 170, 135 S. W. 122.

When the fight took place in the road, and appellant took the plank away from Wilshire, and he either handed it to Woods, or Woods wrenched it out of his hands and struck Wilshire, Wilshire ran, Woods pursuing him. Appellant objected to Wilshire testifying what Woods did to him after he ran, on the ground that appellant was not present. If appellant, was a principal in the commission of the offense, the evidence would be admissible, and, as the evidence shows that appellant, Brown, and Hunt followed on after them, and the state’s testimony would show that when they caught him with Woods and Wilshire they remarked “that he [Woods] ought to beat your [Wilshire’s] damned head off,” it would be a strong circumstance tending to show that appellant was present and lending encouragement to Woods in the commission of the assault, and guilty of such conduct as would make him a principal in the commission of the offense.

Wilshire testified that after he fled he got tangled in some brush, when Woods overtook him and beat him with a fence rail; that he knew it was a fence rail because one was found on the ground the next morning with blood on it. On cross-examination it appeared that Wilshire did not go back to the scene of the difficulty, and did not see the rail, but Gulley did go back and find the rail and saw the blood. Wilshire should not have been permitted to testify as to what he had learned from Gulley. It was hearsay, but, inasmuch ás Gulley testified to the same state of facts, and there is no testimony denying this state of facts, this does not present reversible error. If appellant had raised an issue by any testimony that it was not a fence rail, or that one was not found on the ground with blood on it, we might take a different view of the matter.

Appellant’s testimony would raise the issue that he was not a principal, and was an innocent bystander, who merely happened to be present when all these matters occurred; that he in no way aided or encouraged Woods, and did no acts and was guilty of no conduct that would make him a principal. This issue was fairly and fully presented in the two special charges given at appellant’s request, and the jury found against such contention, and we would not be authorized to disturb their finding, as the evidence offered by the state will support the verdict of the jury on this and all other issues in the case.

Appellant contends there is no evidence tending to raise the issue of a premeditated assault. We think the state’s evidence would amply show a preconceived premeditated plan to waylay Gulley and Wilshire; that they were waylaid and a fight forced by Woods at a point in the road selected by Woods, appellant, Hunt, and Brown, when all four were present.

The judgment is affirmed. 
      
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