
    HOUGHTON v. STATE.
    
      (No. 9825.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Assault and battery <§=»96 (I) — Refusal to instruct that defendant would not be guilty as principal if he went to scene of difficulty without knowledge of coactor’s intent held erroneous under evidence.
    In prosecution for assault and battery, refusal to instruct that, if defendant went to scene of difficulty without knowledge of intent of eodefendant to assault another he would not be guilty as principal under Vernon’s Ann. Pen. Code 1916, arts. 75, 78, unless by Ms acts, words, or gestures he aided,or encouraged assault, held erroneous under evidence.
    2. Assault and battery <§=>91 — Evidence held insufficient to sustain conviction.
    In prosecution for assault and battery, evidence held insufficient to sustain conviction.
    Appeal from Floyd County Court; E. C. Nelson, Jr., Judge.
    T. M. Houghton was convicted of assault and battery, and he appeals.
    Reversed and remanded.
    N Mathews & Folley, of Floydada, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is assault and battery; punishment fixed at a fine of $25. '

An assault upon J. J. Wilson was made by Fred Jones under the following circumstances: Wilson was superintendent of the Floy-dada public schools. Jones and the appellant were pupils. They were taken to task by him because of their absence from school. Jones became offended and challenged Wilson to fight. He declined and was subsequently attacked by Jones. At the time of the attack,* Wilson was overtaken on the street by an automobile in which Jones and several other boys, including the appellant, were riding.- None of the boys except Jones got out of the car or took any part in the affray. The testimony of Jones, appellant, and others was affirmative to the point that appellant joined the party who was riding in jthe automobile on the streets, and that he took no" part in aiding or encouraging Jones. There was testimony also that the other boys in the car were likewise ignorant of'the intent of Jones and that they took no part in the affray. Appellant was not present when Jones had previously made an offer to fight Wilson.

The information contained two counts. The first was for an unlawful assembly.; the second was for an assault. The court gave a written charge upon both of these issues. The charge is quite voluminous and is assailed upon many grounds. The law of principals, as embraced in articles 75 and 78 of Vernon’s Ann. Pen. Code 1916, is given in the charge. These phases of the statute, that is, aiding or encouraging the principal actor, while present and knowing of the unlawful intent, and making ope a principal who, in advance, agrees to the commission of the offense and is present at the time it is committed, were submitted, from the state’s standpoint, in much detail.

Bill No. 23 reflects the fact that appellant requested and the court refused to give an instruction to the effect that if the appellant went to the scene of the difficulty without knowledge of the intent of Jones to assault Wilson, he would not be guilty as a principal, unless, by his acts, words, or gestures, he aided or encouragéd Jones. In refusing to give this charge, we are of the opinion that the learned trial judge was in error.

The evidence, if any, that the appellant agreed in advance to the commission of the offense is extremely meager. Unless there was a previous agreement, we perceive no evidence of co-operation of the appellant in the assault. The state’s attorney in this court expresses the opinion that the evidence does not warrant the conviction. It may be different upon another trial. If not, we are of the opinion that the issue should not be submitted to the jury.

We will add that if another trial takes place, the conversation between Dr. Houghton and Ed Jones in the absence of the appellant should not be received. It was hearsay.

The judgment is reversed, and the cause remanded.  