
    BURNAM v. STATE.
    (Court of Criminal Appeals of Texas.
    March 22, 1911.)
    1. Criminal Law (§ 822) — Instructions — Construction.
    Instructions given in a criminal case must be considered together.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    2. Homicide (§ 234) — Principals and Accessories — Presence.
    While mere presence of a defendant at the time decedent was killed by another, without participation in the commission of the offense, will not render defendant a principal, such presence is a circumstance which, in connection with others, may warrant a conclusion that he was a participant.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 234.]
    3. Criminal Law (§ 784) — Instructions — Circumstantial Evidence.
    Pen. Code 1895, art. 78, declares that any person who advises or agrees to the commission of an offense, and who is present when the offense is committed, is a principal, whether he aids in the illegal act or not. Held,, that where an issue whether defendant advised or agreed to the commission of an offense is raised, and this is shown by circumstantial evidence alone, it is proper for the court to charge on circumstantial evidence on that particular issue.
    [Ed. Noté. — For other cases, see Criminal Law, Dec. Dig. § 784.]
    4. Homicide (§ 83) — Manslaughter — Parties.
    Though there can be no accomplices in manslaughter, the law of principals may apply to that offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §■' 109; Dec. Dig. § 83.]
    5. Criminal Law (§ 721%
      
      ) — Trial—Argument of District Attorney.
    In a prosecution of accused as a participant in a homicide committed by another, it was proper for the district attorney to comment on the fact that while the wife of the person committing the homicide was in the courtroom, and had not been sworn as one of the witnesses, accused could have called her as a witness, but the state could not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    6. Criminal Law (§ 722) — Trial — ABatrment of District Attorney.
    It was also proper for the district attorney to comment on what accused did not do at the time of the killing, as well as on what he did do, together with the affection of the deceased father for his daughter, and his dependence on her, etc., though not with reference to particular instances not shown by the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from District Court, Wise County; J. W. Patterson, Judge.
    Ferrell Burnam was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    R. E. Carswell and Robt. Carswell, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.
    
      
      For otlier cases see same topic and section NUMBER. in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted of murder in the second degree, and his punishment fixed at ten years in the penitentiary. This is a companion case, or rather grew out of the same killing of John Mosier, with that of Roy Burnam v. State (recently decided, but not yet officially reported) 133 S. W. 1045. Several of the bills of exceptions present matters that will not occur upon another trial; hence it is unnecessary to mention or decide them.

1. There was no error in excluding the evidence of the witness Hullinger, shown by appellant’s bill of exceptions No. 1; nor in excluding the testimony of Dr. Rogers, as shown and presented by bill No. 2; nor in excluding the testimony of the witness Curtis Burnam, as shown by bill No. 4; nor in admitting the testimony of the witness Ta-ber, as shown by No. 5; nor in excluding the testimony of the witness Bird, as shown by No. 7.

2. Complaint is made of subdivisions 11 and 13 of the charge of the court. When these charges are all taken together, we think the criticisms thereof do not show reversible error. It is true that the mere presence of the appellant at the time of the killing of Mosier by Roy Burnam, without the participation in the commission of the offense by appellant, will not constitute him a principal, yet such presence is a circumstance, and, taken in connection with other facts and circumstan'ces, may be sufficient to warrant the inference and conclusion that he was a participant. Burrell v. State, 18 Tex. 713, and other cases cited under note, page 77 of Willie’s Edition of White’s Penal Code. Upon another trial it might be well enough for the court below, if these same charges are substantially given, to so frame the charge as that the jury would not be authorized to convict the appellant solely from the fact of his presence at the time of the killing.

Complaint is also made of these two subdivisions of the court’s charge, because they submit to the jury the issue of whether or not appellant advised or agreed to the killing by Roy Burnam, claiming there was no evidence raising that issue and justifying that charge. In this connection complaint is also made that, if this issue is raised, it is raised only by circumstantial evidence. That issue in the charge was based upon article 78, Pen. Code 1895, which is: “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.” If, upon another trial, the issue is raised of whether or not the appellant advised or agreed to the commission of the offense, and that is shown by circumstantial evidence alone, then it would be proper for the court to charge on circumstantial evidence on that particular issue, as claimed by the appellant. This matter, however, can be taken care of on another trial.

3. Appellant also claims that the court erred in not giving a charge on the issue of selfJdefense as to Roy Burnam, claiming that the testimony of Miss Lissenby raised that issue. We are of opinion that the testimony of Miss Lissenby alone does not raise the issue, and if her testimony is the same on another trial as on this, and there is no other evidence sufficient to raise the issue, it would not be necessary to charge on self-defense. This matter can also be controlled and taken care of on another trial.

4. The record indicates that the theory of the state was that the appellant was guilty of murder in the first or second degree, or nothing at all, while the theory of the defense was that the question of manslaughter as to Roy Burnam, which would be applica-> ble to the appellant, was also in the ease, and the court was requested by special charges to submit that issue to the jury. It has been held by this court, in the cases of Cartright v. State, 16 Tex. App. 473, 49 Am. Rep. 826, and Ogle v. State, 16 Tex. App. 361, that, though there can be no accomplices in manslaughter, still the law of principals may and can apply in manslaughter. The facts and circumstances, in our opinion, did raise the question of manslaughter as to Roy Bur-nam, which, we believe, was also applicable to the appellant in this case. Therefore the court erred in not submitting that issue to the jury in an appropriate charge, which results in the reversal of this case. If the evidence upon another trial raises that issue, then it will be necessary for the court to submit it to. the jury.

5.. Several complaints were made of the argument of the attorney for the state in closing the case. Among them -is the complaint that he commented on the fact that, while Roy Burnam’s wife was in the courtroom and liad been sworn as one of the witnesses, the appellant could have used her as a witness, but the state could not. This, as shown by this bill, was a legitimate comment by the attorney for the state. Eggleston v. State, 128 S. W. 1110.

Other/ complaints, such as his comment on the affection of the father for the daughter, and the dependence by him on her, may be legitimate grounds of comment. However, it might not be proper for the attorney to refer to particular instances, such as that of Judge Patterson and his daughter, when there is nothing in the record thereabouts. It would also be a subject of legitimate comment by the attorney, within reasonable bounds, to comment upon what the appellant did not do at the time of the killing, as well as what he .did do. As to the other matters complained of on this point, they will not likely occur on another trial. It is, of course, always best for the attorney for the state to keep within the record, and in no instance to go out of it, in making argument to the jury.

For the error pointed out above in the failure of the court to charge on adequate cause, and, in connection therewith, on manslaughter, the judgment is reversed, and the cause remanded.  