
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1. Ceiminal Law (§ 423) — Evidence — Statements op Conspirators.
    In a prosecution for assault to murder, where the state’s theory of the case was that four persons were acting together in a conspiracy to take the life of the person assaulted, there was no error in admitting statements made by the conspirators, or their acts, during the afternoon which preceded the evening of the assault, as the acts and declarations of co-conspirators, prior to the consummation of the completed act, are admissible to show the conspiracy and the -animus behind the acts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. § 423.]
    2. Homicide (§ 169). — Evidence—Condition op Ground Where Assault Occurred.
    In a prosecution for assault to murder, it was shown that the person assaulted had been induced to go to a certain place; that while on his way there he encountered defendant and some relatives of his at the place where the assault occurred; and that defendant was sitting in a buggy at that place. Held, that testimony as to the condition of the ground where the assault occurred, the tracks, etc., found there, was properly admissible, as it would have a tendency to show whether the persons at this point were waiting for the person assaulted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    3. Criminal Law (§ 338) — Evidence—Applications por Continuance.
    In a prosecution for assault to murder, it is error to admit in evidence two applications for a continuance made by defendant, where defendant on the stand admitted that he had applied for continuances and stated why he had done so, and there was nothing in the applications which contradicted his testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 767, 788, 801, 855; Dec. Dig. § 338.]
    4. Homicide (§ 310) — Instructions—Duty to Charge as to Aggravated Assault.
    In a prosecution for assault to murder, where the evidence offered by the state makes out a case of assault to murder, but there is evidence for defendant that he had been informed that the person assaulted had made insulting remarks about defendant’s stepdaughter, and that, hearing these remarks he went to see the person assaulted about the matter and to demand an explanation from him, the court should charge on aggravated assault; for, if defendant was informed of the insulting language about his'stepdaughter, and this produced in him anger or resentment to the extent of rendering him incapable of cool reflection, and he had killed the person assaulted within an hour after being so informed, the issue of manslaughter would have been raised as to defendant; and, as the assault did not produce death, the same circumstances, if true, would reduce the offense to an aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§■ 657-661; Dec. Dig. § 310.]
    5. Homicide (§ 300) — Self-Defense—Duty to Inste ctct.
    Where the evidence, in a prosecution for assault to murder, shows, on the part of the defendant, that he had heard that insulting language had been used by the person assaulted in regard to defendant’s stepdaughter, that he met him in the road and asked him what he meant by such language, and that the person assaulted denied using the language and ran his hands in his pocket and acted as if he were going to spring at him, the evidence is sufficient to require the submission by the court of the issue of self-defense, although the circumstances may indicate that the evidence was probably not true.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    6. Homicide (§ 305 — Instructions as to ConspiRacy — Sufficiency of Evidence.
    Where the evidence for the state, in a prosecution for assault to murder, supports the theory that there was a conspiracy formed by defendant and three other persons to take the life of the person assaulted, because he had whipped one of the conspirators, and in pursuance of that conspiracy one of them had gone to the place where the person assaulted was, while three of them stopped some little distance from the place, and that the man who called upon the person assaulted induced him to go by the place where the others were, when he was assaulted, the court did not err in charging on who were principals in the commission of the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig.- § 637; Dec. Dig. § 305.]
    Appeal from District Court, Carson County; F. P. Greever, Judge.
    Andrew Wilson was convicted of assault to murder, and appeals.
    Reversed and remanded.
    Willis & Willis,, of. Canadian, and R. T. Corred, of Ochiltree, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was convicted of assault to murder and his punishment assessed at five years’ confinement in the state penitentiary.

It appears: That on the- afternoon of the day that the shooting occurred at night Jeif Wilson, Joe Allen, and Dorsey Jones met at a point near the residence of Mr. Losey. That a fight between Jeff Wilson and Dorsey Jones occurred, in which Dorsey knocked Jeff Wilson down. Jones left and went to the home of Mr. Crites, where he was working. It appears that after this fight Jeff Wilson, Bob Wilson, Joe Allen, and appellant were all seen at the home of L. A. Allen, the father of Joe Allen, and they all left there about the same time. Between the time of the fight in the .afternoon and the shooting at night, Joe Alien went to the home of G. B. Warner and asked him If Dorsey Jones was there, and, upon being told that he had gone, Joe Allen remarked, “We are going to get him.” While at the home of L. A. Allen, Bob Wilson asked how long Dorsey' Jones had been gone, and when told said, “We are going to get him.” ’ Mr. Allen then talked to him about the fight between Dorsey Jones and Jeff Wilson and advised him to drop it, when Bob Wilson replied, “Well, it ain’t settled, Mr. Allen.” They left this place, going in the direction of Mr. Crites’; the three Wilsons .being in a buggy and Joe Allen horseback. It appears that Joe Allen went to the residence of Mr. Crites alone, and called Dorsey Jones and asked him for some money that was owing him. Jones did not have the money, and Allen suggested that he could probably get it from a certain man, and he needed it. Jones agreed to go and see, and in going to the place where the horses were situate he came up on the three Wilsons in the buggy, in a little valley, when the difficulty occurred.

In a number of bills of exceptions objections were made to the statements of Joe Allen made to Mr. Warner, the statements' made by Bob Wilson to Mr. Allen, and the evidence about the fight .between Jeff Wilson and Dorsey Jones that afternoon, and the acts and conduct of Joe Allen at the residence of Mr. Crites. As the state’s theory of the case is that all three of the Wilsons and Joe Allen were acting together in a conspiracy to take the life of Jones because of the difficulty between him and Jeff Wilson that afternoon, there was no error in admitting all this testimony. The acts and declarations of co-conspirators, prior to the consummation of the completed act, are all admissible in evidence, both to show the conspiracy and the animus behind the acts. As to the fight that afternoon, as, according to the state’s contention, the subsequent assault took place as an act of revenge for Jones knocking down Jeff Wilson that afternoon, it became admissible for the jury to determine whether or not the latter assault grew out of it, and the parties were attempting to kill Jones because thereof.

The testimony of Sam Hunter, as to the condition of the ground where the assault occurred, the tracks, etc., found there, was properly admissible in evidence. The record shows that appellant was in the buggy at this point, and this testimony would have a tendency to show whether or not 'they were at this point waiting for Jones, while Allen went to Mr. Grites’ home after Jones. However, we cannot understand upon what theory the court admitted the two applications for a continuance made by appellant. It is true he took the stand and admitted that at the former term he had applied for a continuance on account of the absence of Allen, and stated that he expected to prove by him that Dorsey Jones had made insulting remarks about bis stepdaughter, and that he could prove this by no other witness, while at this term of court he applied for a continuance on account of the absence of his stepdaughter, alleging that she would testify that Jones had insulted her by making to her improper proposals. Appellant, while testifying, had explained this, and said, at the time the former term of court was held, his stepdaughter had not told him about the insulting proposals made to her, but had told him since he filed the first application for a continuance. These applications would' not contradict that statement, nor any statement made by appellant while testifying in his own behalf, and the court erred in admitting them in evidence. If, when he testified on this trial that his stepdaughter had told him of improper proposals being made to her, and he was asked if at the former term of court he had not sworn that he could prove these facts by Joe Allen alone, he had denied doing so, so much of the application as showed he had so sworn would have been admissible. But when the question was propounded to him he admitted he had so sworn, and stated that his stepdaughter had told him since that time, and the application for a continuance, nor any portion thereof, would not tend to impeach his testimony on this trial. And the same may be said of the application made at the term of court at which he was tried. Nothing therein contained would tend to impeach his testimony on the trial, and we are at a loss to understand why the applications were admitted in evidence.

The court failed to charge on aggravated assault, and in this we think the court erred. It is true the evidence offered in behalf of the state would make a case of assault to murder, but appellant testified that he was informed that Jones had made very insulting remarks about his stepdaughter, by both his brother Jeff and by Joe Allen; that after hearing of these remarks he went to see Jones about the matter, with a view of demanding an explanation from him. If appellant was informed that Jones had used insulting language about his stepdaughter and imputed to her a want of chastity, and this produced in him anger, rage, or resentment to the extent of rendering him incapable of cool reflection, and he, or those acting with him, had killed Jones within an hour after appellant had been so informed, at the first meeting, the issue of manslaughter would have been raised as to appellant; it being his stepdaughter that the want of chastity was alleged to have been imputed to. And if this is true, then, as the assault did not produce death, the same circumstances, if true, would reduce the offense to an aggravated assault. Appellant’s testimony raised this issue, and the court, under appropriate instructions, should have submitted it to the jury.

Again, appellant complains that the court did not submit the issue of self-defense. As hereinbefore stated, the evidence offered in behalf of the state made the offense assault to murder, without excuse or justification—a case of waylaying. But appellant testified he did not send Joe Allen to the house after Jones; that he did not know he was going to that house; and, while driving towards Crites’ to see Jones about the insulting language he had used in regard to his stepdaughter, he met him in the road and asked him what he meant by the language he had used about his stepdaughter, when Jones denied using the language, and asked him who had told him (appellant) that he (Jones) had done so. Upon appellant replying that Joe Allen and Jed Wilson had so informed him that evening, Jones replied that it was a “God damn lie,” ran his hands in his pocket, and acted as if he was going to spring at him, when he (appellant) stopped him (Jones), and some one fired the shot that inflicted the wound. The prosecuting witness says that appellant did not fire the shot, but that he held him while his brother shot him. The evidence, we think, called for an appropriate charge presenting this issue to the jury. It may be the court did not believe it, and we think the circumstances would indicate that it is probably not true, yet appellant so testifies, and the jury should have been told, if appellant had been informed of the insulting language, and, whether true or false, if he believed it to be true, and he went to see Jones to demand an explanation of his conduct, and when he did ask for an explanation Jones, by his acts and conduct at that time, led appellant to believe that his life was in danger, and he had not entered into a conspiracy to take the life of Jones, he would be guilty of no offense.

There were well-defined theories in the case, that offered by the state and that presented by defendant. The evidence offered by the state would support the theory that there was a conspiracy formed by appellant, Bred and Bob Wilson, and Joe Allen to take the life of Dorsey Jones, because he had whipped Bred Wilson that evening, and in pursuance of that conspiracy they had gone to the home of Jones; three of them stopped in the valley, while the fourth went to the house and got him, and caused him to go by this valley, when he was assaulted; consequently the court did not err in charging on who are principals in the commission of an offense. Consequently the court did not err in admitting all testimony going to prove those issues and submitting in his charge that theory to the jury. On the other hand, the defense of appellant was he entered into no conspiracy; that he did not shoot Jones, and did not know any one else was going to do so when it was done; that when he approached Jones and asked him about the language he says he had been informed Jones had used in regard to his stepdaughter Jones ran his hand in his pocket and acted as if lie was going to spring towards them, when the shot was fired. The defenses offered were not submitted to the jury, and they should have been, under appropriate instructions.

There are many other bills of exceptions in the record; appellant reserving 17 bills of exception to the evidence. He asked 30 special instructions, and there are a number of grounds in the motion, complaining of the charge of the court, making a. voluminous record, must larger than was necessary to present the real issues in the case. However, we have carefully examined the entire record and each ground in the motion for new trial, but do not deem it necessary to discuss any of the others. The rulings on the questions, already discussed, will furnish a criterion by which the case should be tried, as we have discussed all the material points raised.

Reversed and remanded.  