
    COOMER v. STATE.
    (No. 8099.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.
    Rehearing Denied June 18, 1924.)
    1. Homicide <®=o249 — Evidence held sufficient to support finding officer was killed by shat fired by confederate.
    Circumstances held sufficient to support finding of jury that a shot which killed an officer was fired by one of accused’s two confederates.
    2. Criminal law 1092 (9) — 'Trial judge in vacation held powerless to grant additional extension for filing and preparing bills of exceptions.
    Where an extension of 60 days to prepare and file bills of exceptions, granted under Code Cr. Proc. 1911, art. 845, expired in vacation and no new extension of time had been granted up to that time, the trial judge thereafter was powerless to make an additional extension.
    3. Homicide <3=>29 — Accused became responsible for acts of his coconspirators pending consummation of common design.
    Accused, who conspired to manufacture liquor feloniously and to kill those who might interfere, became responsible for the acts of his coconspirators pending the consummation of the common design and in furtherance thereof, in view of Pen. Code 1911, arts. 75, 76, 78.
    4. Criminal law @=^59(3)— One doing illegal act in furtherance of common design is “principal” whether physically present or distant.
    One who does some act assigned to him in furtherance of a common design to commit a felony is a “principal” under Pen. Code 1911, arts. 75, 76, 78, whether physically present or distant from the place where the crime was committed, and it is not necessary that he be near enough to render assistance to the main design should need arise.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Principal.]
    5. Homicide @=o305 — That accused was under arrest when confederates committed felony held not to render charge on principals in-, applicable.
    That accused was under arrest at the time his confederates, acting on his signal, killed an officer immediately after .his arrest, held not to render inapplicable a charge on principals based on Pen. Code 1911, art. 78.
    6. Homicide <@=»l 11 — Warrant for arrest not necessary where offense was committed in officer’s presence.
    Where the offense of manufacturing liquor was committed in the presence of officers, a warrant was not necessary in view of Code Cr. Proc. 1911, art. 259.
    7. Homicide i®=>309(3)— Evidence held not to raise issue of manslaughter, and hence it was not error to omit charge thereon.
    In a prosecution of one as principal for murder of an officer directly committed by one of accused’s coconspirators immediately after accused signaled them when he was commanded by an officer to throw up his hands, evidence held not to .raise issue of manslaughter, and hence it was not error to omit that charge.
    8. Homicide <§x»249 — Evidence held to justify conviction of accused as principal.
    Evidence held to support conviction of accused as principal.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Clayton Coomer was convicted of murder, and be appeals.
    Affirmed.
    See, also, 260 S. W. 568.
    Baskett & De Lee, of Dallas, for appellant.
    
      ' Shelby S. Cox, Crim. Dist. Atty., of Dallas, and Tom Oarrard, State’s Atty., ánd Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

While Henry Belcher, Pete Welk, and the appellant were engaged in the manufacture of liquor, five officers approached for the purpose of making arrest. Tom Wood, one of the officers, was shot and killed. The prosecution is for the murder of Wood.

From the confession of the appellant and from the testimony of the officers who raided the still, it was shown that the appellant and his confederates, Welk and Belcher, were engaged in the manufacture of whisky at a secluded place; that they were armed, appellant furnishing two shotguns and certain ammunition; that they had determined not to suffer themselves to be arrested but to resist by force of arms. The officers surrounded the stills and secreted themselves for about three-quarters of an hour, listening to the conversations of the appellant and liis two companions and observing their actions. One of them fired his pistol, and another remarked: “You seared me.” Another said: “Yes, that is what would happen if some one came.” The other said: “No, I have a full box of cartridges and X will use them.” A five-gallon jug was then filled with whisky, and appellant started down a path to hide it. He was intercepted by Officer Brite, who demanded that appellant hold up his hands. Appellant dropped his jug and uttered an exclamation. According to the confession, he hollered, “Look out!” According to the officer, he said: “Whoo!” Immediately, appellant’s companions seized their guns and left the still together. After going a few steps, they were intercepted by Officers Love and Wood and were directed to put up their hands. ’They each immediatly fired in the direction of the officers and then fled in different directions. Other shots followed by both the officers and the fugitives. Wood was shot in the head and killed. The circumstances were sufficient to support the finding of the jury that the shot that killed him was fired either by Welk or Belcher.

There are several bills of exception in the record which appear to have been filed on the 28th day of May. The term of court exceeded eight weeks: The motion for new trial was overruled on the 16th day of March. The law allowed 30 days after that date within which to prepare and file the bills of exception. Code of Crim. Proe. art. 845. The statute also permitted an extension of the time by order of the court or the judge. An extension of 60 days was entered on the 17th of March, which expired upon the 18th day of May. No new extension of time had been granted up to that time, and thereafter it was not within the power of the judge in vacation to make an additional extension. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483; Griffin v. State, 59 Tex. Cr. R. 426, 128 S. W. 1134; Hart v. State, 86 Tex. Cr. R. 655, 218 S. W. 1054; Fuston v. State, 94 Tex. Cr. R. 467, 251 S. W. 1076; Harr v. State (No. 7199) 263 S. W. 1055, not yet [officially] reported.

The facts relating to the appellant’s connection with the offense are not in controversy. Welk, Belcher, and the appellant were members of a conspiracy, the purpose of which was to commit the felony of the unlawful manufacture of whisky, and while engaged in the commission of that offen.se, the deceased and others appeared upon the scene for the purpose of arresting the offenders The conspirators had arms ready for use, and the appellant had furnished two shotguns and ammunition. When- he encountered the officers, he gave the exclamation of either, “Look out,” or, “Whoo,” which was heard by his confederates, and they, acting upon it, seized their weápons and dashed away from the still, where there was a firelight, and into the darkness, where they at once en-. tered into a fight with the officers who attempted to arrest them, and the death of the deceased resulted. The court instructed the jury thus;

“Our statute provides that 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.”

Objection was urged to this charge as being inapplicable- for the reason that while appellant was actually present, he was under arrest .and thereby incapacitated to l)ave participated in the acts of his confederates or to interpose any obstacle to theirs committing the offense of murder. The paragraph of the charge quoted is in substance article 78 of the Penal Code. In addition to that charge, the court, in applying the law to the facts, instructed the jury that if the appellant had agreed that he and his companions would resist by force of arms any effort to arrest them and had provided themselves with arms for the purpose of killing any one who made an attempt to arrest them, and that the deceased was killed by one of the appellant’s confederates while he was attempting to make the arrest, tjie appellant would be a principal. No objection was addressed to this paragraph of the charge. Articles 75 and 76 of the Penal Code in substance embrace, among those who may be principals, such as knowing the unlawful intent of the principal actor and aiding by acts or encouraging by words, or keeping watch to prevent his interruption; also, those who procure arms or means of any kind to assist in the commission of the offense, or whoever at the time endeavors to secure the safety of the offenders. The appellant, having entered into the conspiracy to commit a felony and to hill those who might interfere, became responsible for the acts of his coconspirators •pending the consummation of the common del sign and in furtherance thereof. Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Vernon’s Tex. Crim. Stat. vol. 2, p. 37, and cases cited; Hays v. State, 90 Tex. Cr. R. 192, 236 S. W. 463, and authorities cited; also, Cyc. of Law & Proc. vol. 21, p. 679, subd. 2. That the appellant was physically present, at the scene of the homicide is conceded, but that because, of his arrest, he was not present within the meaning of the statute. "Present,” it is said by the appellant, rer quires that he be near enough to render assistance to the main design should need arise, citing Amer. & Eng. Ency. of Law, vol. 1, p. 258. There it is also said: “Thus constructive presence may be actual absence.” Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046; Grimsinger v. State, 44 Tex. Cr. R. 20, 69 S. W. 583. Whether physically present or distant from the place where the crime is committed, if at the time he does some act assigned to him in furtherance of the common design, he is held a principal under our statute. See authorities in Amer. & Eng. Ency. of Law, vol. 1, p. 259. Eor exámple, one who was 40 miles away and gave a signal upon which his confederates acted was a principal. See State v. Tally 102 Ala. 25, 15 South. 722.

In the present case, the evidence shows that appellant not only agreed in advance to the commission of the offense, but that he furnished arms to be used in the criminal act, and that it was upon the exclamation, remark, or signal given by him that his confederates acted in attempting to prevent the arrest. It is true that at the immediate time the shot which killed the deceased was fired, appellant was 'under restraint, though the firing was practically simultaneous with his custody. Brite had not taken physical possession of the appellant before the firing began. Immediately upon the appellant’s observing the presence of Brite, he used an expression which was acted upon by WeHk and Belcher. The conspiracy to resist arrest included all. Upon its success rested the appellant’s freedom as well as that of his companions. It was but chance that directed the fatal shot to Officer Wood rather than to Brite, who accosted the appellant. 1-Ie having stepped away from the still to deposit some whisky, had failed to carry his gun, but if his companions, on fleeing from the still with their guns, had come upon Brite, who held the appellant in custody, they would, in pursuance of the common design, have fired upon Brite with the same degree of readiness that they did upon Love and Wood, who happened to be the officers with whom they first came in contact.

A charge favorable to the appellant upon the law of self-defense of illegal arrest by firing upon the officers upon the mistaken belief that they were trespassers or robbers, and a charge upon the law of circumstantial evidence, were submitted. We are constrained to regard the charge on principals as not amenable to the objections directed against it. The court assumed that the intent which governed the actual doers of the homicide would be available to the appellant, and for that reason embraced in the charge the matters which have just been mentioned.

Appellant insists that if in shooting Wood, Belcher and Welk were guilty of manslaughter alone, this would inure to the benefit of the appellant. This is questioned. At the time appellant gave the exclamation which caused Welk and Belcher to act, he had no doubt that Brite was an officer. There was in his mind no suspicion that Brite was a robber. He recognized Brite and called him by his first name, and had he killed him, under the facts developed, no issue of self-defense nor manslaughter would have arisen in his own behalf. In the opinion of this court in the case of Red v. State, 39 Tex. Cr. R. 669, 47 S. W. 1094, 73 Am. St. Rep. 965, it is said:.

“The contention of appellant that a principal of the second degree, or one who, under our statute, did not actually commit the offense himself, but who was present, and, knowing the unlawful intent, etc., aided the person who did commit it, can only be convicted of the same degree as the actual doer, is not a sound one. If he enters into the commission of the offense with the same intent and purpose, then his offense will be of the same degree as the actual doer, but he may have a different criminal intent from the one who perpetrates or does the act; and in such case he will be guilty according to the intent with which he may have performed his part of the act. Guffee v. State, 8 Texas Crim. App. 187; and authorities cited in White’s Ann. Penal Code, sec. 92; Rex v. Murphy, 6 Car. & P., 103; 1 Whart. Crim. Law, secs. 214, 220, 479.”

See Rose’s Notes on Tex. Rep. vol. 5, p. 1248; Leslie v. State, 42 Tex. Cr. R. 65, 57 S. W. 659.

In the present case, the appellant, by the charge of the court, was accorded the benefit of all the mitigating and exculpatory evidence which the record presented in favor of the actual doers. The complaint of the appellant that, among these matters of mitigation, the charge on manslaughter was not embraced,.is deemed without merit. As intimated above, it is conceived that even if the issue of manslaughter had been raised in favor of Welk and Belcher, it could not have been incumbent upon the court to apply it in. favor of the appellant. However, we are impressed with the view that the facts ,do not present the issue of manslaughter. There is no suggestion that in firing the fatal shot Wells: and Belcher were not in full possession of their mental faculties. The record suggests that they acted with deliberation in accord with the design previously agreed upon by them and the appellant, namely, that if there was an attempt to arrest, they would resist to the death. The only suggestion that they may have been misled into the belief that they were being attacked by robbers seems that inferred from the fact that Officers-Love and Wood gave the command to “stop and put up their hands.” At the time this command was given, Welk and Belcher had received and were acting upon the signal or exclamation of the appellant. The more natural inference is that on receiving that signal, they became aware of appellant’s arrest and of their own danger of apprehension, and that their subsequent acts were in accord with this view, rather than in the belief of excitement based upon the impression that they were the subject of an'unlawful attack.

It is true that there being other elements concurring, the issue of manslaughter might arise from an unauthorized arrest. Jones v. State, 26 Tex. App. 12, 9 S. W. 53, 8 Am. St. Rep. 454. An .authorized arrest in a wanton and menacing manner causing reasonable apprehension of death or serious bodily injury might justify a homicide. Hardin v. State, 4 Tex. App. 355; Jones v. State, 26 Tex. App. 12, 9 S. W. 53, 8 Am. St. Rep. 454; Burkhardt v. State, 83 Tex. Cr. R. 228, 202 S. W. 513; Bishop’s Crim. Law (9th Ed.) vol, 1, § 868.

In the present Case, there is no basis for the contention that the arrest was not authorized. The offense was committed in the presence of the officers, and a warrant was not necessary. Article 259, C. C. P. According to this statute, a private person would, under the facts, have been authorized to apprehend the appellant and his companions. The court instructed the jury on the law of justifiable homicide on the theory that Welk and Belcher might have believed that they were in danger of death or serious bodily harm.

_ Our examination of the record and the authorities to which we have been referred, or which have come to our attention, does not lead us to believe that there was no evidence justifying the conviction of the appellant; nor that there have been pointed out errors in the charge of the court such as would justify a reversal of the judgment.

An affirmance is therefore ordered.

On Rehearing.

HAWKINS, J.

In view of appellant’s motion, we have cohsidered the bills of exception. The first complains of receiving in evidence appellant’s confession. To our minds the objections urged do not appear tenable. All other bills relate to the refusal of charges upon the issue of self-defense or manslaughter. Upon self-defense the court gave a charge which was as liberal as the facts justified, and perhaps more so. We agree with counsel for appellant that it is in rare instances only where a charge upon manslaughter may properly be omitted if a charge upon self-defense is called for; but from a reexamination of the facts in evidence, we are of opinion the present case furnishes one of the exceptions.

Believing our former announcement made a correct disposition of the ease, the motion for rehearing is overruled. 
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