
    WALKER et al. v. STATE.
    (No. 9582.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.
    Rehearing Denied April 21, 1926.)
    1. Criminal law <&wkey;l 111 (3)— Bill of exceptions to admission of testimony held to manifest no error, in view of trial judge’s statement in signing it and statement of facts showing that statement in reference to testimony was not true.
    Where trial judge in signing bill of exceptions to admission of testimony, said that statement therein with reference to such testimony was not true, and that no exception was taken, and statement of facts shows that it is untrue, bill manifests no error.
    2. Criminal law &wkey;>l III (3) — Bill of exceptions to admission of testimony, on cross-examination of defendants and other witnesses in murder trial as to whisky making by them, held to show no error, in view of court’s qualifications (Vernon’s Ann. Code Cr. Proc. 1916, art. 811).
    Where bill of exceptions to admission of defendants’ and other witnesses’ testimony on cross-examination in murder trial as to whisky making by them on night after homicide, in house where offense was committed, was approved with qualification that one of such witnesses did not testify as to such fact, that defendants testified as to it in direct examination, and that court limited testimony to credibility of witnesses, bill showed no error, in view of Vernon’s Ann. Code Or. Proc. 1916, art. 811.
    3. Homicide <&wkey;286(l) — Requested charge that fact that defendant struck deceased with something did not show intent to kill, but that such intent must be found beyond reasonable doubt from other facts and circumstances in evidence, held erroneous.
    In murder trial, requested charge that fact that defendant struck and killed deceased with something did' not show intent to kill, but that jury must first find such intent beyond reasonable doubt from other facts and circumstances in evidence, -hold .erroneous; jury being entitled to consider all facts and circumstances, including striking of blow in determining intent.
    4. Criminal law <&wkey;>l 186(4) — Refusal of instruction that fact that defendant struck and killed deceased with something would not show intent to kill, but that jury must find such in,tent beyond reasonable doubt from oth- ■ er facts and circumstances in evidence, held not reversible error (Vernon’s Ann. Code Cr. Proc. 1916, art. 743).
    In murder trial, refusal of instruction that fact that defendant struck and killed deceased with something would not show intent to kill, but that jury must find such indent beyond reasonable ' doubt from other facts and circumstances in evidence, held not reversible error, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 743; not being calculated to injure defendant’s rights under entire record.
    On Motion for Rehearing.
    5. Homicide <&wkey;42.
    Issue of manslaughter arises when assailant’s mind is rendered incapable of cool reflection by adequate cause.
    6. Homicide &wkey;>309(5).
    In murder trial, evidence held to show premeditation and deliberation, so as to preclude charge on manslaughter.
    7. Criminal .law <@=»780(4) — Charge not to convict on accomplice’s testimony alone, unless believed to be true and to connect defendants with offense charged, nor even then, unless there was other corroborative testimony so tending, held not reversible error.
    In murder trial, charge that jury could not convict on testimony of accomplice alone, unless they believed that it was true and connected defendants with offense charged, nor even then unless there was other corroborative testimony tending to connect defendants with offense, held not reversible error, where accomplice’s testimony embraced all elements of oifense and connected accused with its commission and was sufficiently corroborated by circumstances.
    <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      8. Criminal law <&wkey;823(16) — Instruction not to convict defendant, unless he knew before and when blows were struck by codefendant that latter intended to kill, held properly refused, in view of instructions given, absence of evidence of his ignorance of such intent, and existence of evidence tending to make him a principal (Vernon’s Ann. Pen. Code, 1916, arts. 75, 78).
    In murder trial, instruction to acquit one oí defendants, unless he knew before and when blows were struck by codefendant that latter intended to kill deceased, held properly refused, in view of main charge and charges on alibi, aggravated assault, necessity of specific intent to kill if instrument was not a deadly weapon, and who are principals within Yernon’s Ann. Pen. Oode 1916, art. 75, absence of affirmative evidence of such defendant’s ignorance of co-defendant’s intent, and existence of evidence tending to make him a principal under article 78.
    (&wkey;For other cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Brown County; .J. O. Woodward, Judge.
    Ed Walker and Gibbs Howard were convicted of murder, and they appeal.
    Affirmed.
    Callaway & Callaway, of Comanche, for appellant.
    McClellan & Cross, of Gatesville, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
   BERRY, J.

The appellants were convicted in the district court of Brown county for the offense of murder, and their punishment assessed at confinement in the penitentiary for 25 years.

Appellants and one Willman were charged with the murder of Jack McCurdy in Comanche county in 1921. The parties charged were first tried separately; they were convicted, and all the cases were reversed upon appeal. Howard v. State, 242 S. W. 739, 92 Tex. Cr. R. 221; Willman v. State, 242 S. W. 746, 92 Tex. Cr. R. 77; Walker v. State, 242 S. W. 749, 92 Tex. Cr. R. 296. The parties were again tried and convicted, and upon appeal the cases were again reversed. 252 S. W. 543, 94 Tex. Cr. R. 653. After this reversal, Willman was again tried and convicted, and his case by this court affirmed. 268 S. W. 933, 269 S. W. 801, 99 Tex. Cr. R. 259. In the cases above referred to, a sufficient statement of the facts will be found.

By bill of exceptions No. 1, appellants complain that, when the witness Henry was on the stand, he was permitted, over objection of the defendant, to state, in substance, that, on the next morning after the alleged killing had taken place the night before, he went back to his home and hid a certain pair of spurs belonging to the deceased, north of his house some 40 or 50 yards, and hid a whisky coil or piece of pipe soldered to the top of a can, the same being the property of said witness and another party, and that thereafter the sheriff of Comanche county and his two deputies were permitted while testifying for the state to state over the objections of the defendant that, on an occasion some 20 days after the offense was supposed to have happened, they went in company with the accomplice witness to the scene of the supposed killing and under Henry’s direction they found the articles — that is, the spurs and the whisky — coil where Henry had theretofore testified that he had hid them. The court, in signing this bill, states that the sheriff and his deputies never testified anything that the said Henry told them, and states that the statement of facts will bear the court out in making this statement. In view of the court’s qualification to the bill, we have examined the testimony of the witnesses named, and we fail to find where they gave any such testimony. On the contrary, we find that the testimony of said witnesses as given on this trial was held admissible by this court in the first appeal of these cases. Howard v. State, 242 S. W. 739, 92 Tex. Cr. R. 221; Willman v. State, 242 S. W. 746, 92 Tex. Cr. R. 77; Walker v. State, 242 S. W. 749, 92 Tex. Cr. R. 296.

By bill of exceptions No. 2, appellants complain that, while the witnesses Arther, Edwards, and Marshall were on the stand testifying in behalf of the state, they were each permitted to testify and did testify over defendant’s objections, in substance and effect: That on an occasion about 20 days after the alleged homicide occurred they visited the scene of the supposed homicide in company with the accomplice witness, Earl Henry, and in his company and under his direction that they found three certain piles of ashes or certain piles of ashes some 8 or 10 steps southwest of the home of W. W. Willman, and at a place where the accomplice witness, Henry, had pointed out to them where he claimed the offense occurred, and that they (the witnesses) dug under these piles of ashes, and the ground thereunder was moist, while around the ashes it was dry and hard.

In signing this bill, the trial judge says that the statement in said bill of exceptions with reference to Arther’s, Edwards’, and Marshall’s testimony is not true, and that no exception was ever taken, and the statement of facts in the case will show that the statements in said bill of exception are untrue. Under this condition of the record, we cannot do otherwise than hold that the bill fails to manifest any error.

By bill No. 3, appellants complain that, while the defendants Ed Walker and Howard and while Mrs. Willman and Mrs. Howard were on the stand testifying, they were each forced to testify and did testify, over the defendants’ objections, that on the night after the supposed homicide had occurred, and beginning about 10 or 11 o’clock on the night the homicide was supposed to have happened about dark, that each of them took some part in making some whisky or boiling off some mash in the home of W. W. Willman, at which place the offense was supposed to have happened; • and they were forced, over the objections of the defendants, to detail and go into the minutest descriptions of the details of such offense and such act and in every particular thereof. This bill is approved by the court with the qualification that Mrs. Howard did not testify anything about the whisky made at Willman’s that night; and that the first that was testified about whisky being made at Willman’s that night was by Ed Walker himself in direct examination by Mr. Callaway, and that the whisky was again referred to by witness Howard in his direct examination by Calla-way, and the whisky matter was first referred to by Mrs. Willman in direct examination by Mr. Callaway when she said, “I did not tell them (meaning the grand jury) the truth about it, because we were making whisky down there, and we did not want them to know it.” The court further states that he limited all testimony as to whisky making brought out by the state to the credibility of the witnesses, and allowed it for no other purposes. Under this condition of the record, the bill Of exceptions No. 3 fails to show any error. Article 811, Yernon’s C. O. P., and many authorities there collated.

Appellants also complain at the court’s action in refusing to give their special charges to the jury. The first of these was a peremptory instruction to acquit, and it was properly refused.

The second charge asked the court to instruct the jury as a matter of law that malice aforethought was not in the case. A reference to the- facts disclosed by this record and detailed in the former opinions of this court in these eases is sufficient, we think, to justify the statement that no error was committed by the court in refusing this charge.

By special charge No. 3, appellants sought to have the court charge on the presumption arising from the use of a weapon which was not per se deadly. The special charge offered on this question was not correct. Among other things, it asks the court to instruct the jury that:

“If you should believe and find from the evidence that Ed Walker struck and killed Jack McCurdy with something, this fact alone would not show that Ed Walker intended to kill deceased at the time he struck such blow, but you must first find and believe beyond a reasonable doubt from other facts and circumstances in evidence before you that the said Ed Walker had the specific intent to kill deceased, and, unless you so find the fact to be from such other facts and circumstances in evidence, then you will acquit the defendant of any grade of culpable homicide.”

This charge is not correct, and did not state the law. It is erroneous in the assumption that the fact of Walker’s striking the deceased is as a matter of law insufficient within itself to show an intent to kill. And it is further erroneous in requiring the jury to believe beyond a reasonable doubt, from other facts and circumstances in evidence besides the striking of the blow, that Walker intended to kill the deceased. The jury had a right to consider all the facts and circumstances, including the striking of the lick itself, in determining the appellant’s intent at the time he acted, and the failure to give the special charge embodying the foregoing propositions was not error. Again we hold that we would not be authorized to reverse this case on account of the court’s failure to give this charge, because under the entire record such -an omission was not calculated to injure the rights of the appellants. Article 743, Yernon’s O. O. P.

By special charge No. 4, appellants sought to have the court to charge the jury on the question of manslaughter. There was no manslaughter in the case. If the state’s testimony is true, the appellant and his coprin-eipals called the deceased out and deliberately beat him to death, wrapped his body in a quilt, carried and laid him on a railroad track, and told their coprineipal Henry if he told it they would kill him. There is utterly lacking in the case any fact or circumstance tending to show either adequate cause or sudden passion, viewed from the state’s standpoint. The appellants’ defense was an alibi, and of course the testimony showing an alibi did not raise the issue of manslaughter.

The other special charges offered, where they correctly state the law, were in our opinion fully covered by the court in his main charge to the jury.

In fact, we think that practically every question of moment, raised by the appellants in this case and not discussed herein, has been decided adversely to their contention in the former appeal of the cases of these appellants and their coprincipal Willman.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellants insist that there was prejudicial error in failing to charge on the issue of manslaughter. In their testimony, the appellants denied any connection with the homicide. They claimed chat from the testimony of the state’s witness Henry the issue of manslaughter arose. Henry testified that he and the deceased went to the home of Willman and there found Willman, his wife, and Mrs. Howard; that Walker and Howard later arrived on horseback. Walker asked McCurdy if he had been before the grand jury. McCurdy replied that it was none of his business. At that time the parties were all together. From Henry’s testimony we quote:

“He (Walker) told Jack it would be in a minute, and punched Willman. They got hold of Jack’s arm, Walker holding his right arm and Willman his left, and led him away from the house. Walker asked him then if he had been before the grand jury, and Jack told him that it was none of his G- d- business. So Walker told him it would be, and reached down and picked up something and knocked him in the head with it. I don't know what he picked up, a wagon spoke it looked like to me. He hit him right across the head there. * * * He hit him with both hands, and Jack kind of groaned and fell. Walker hit him again'right back of the head, and after he rolled over there then he hit him right, across the face.”

Henry also gave testimony to the effect that -some three weeks prior to the homicide, Henry, Walker, and McCurdy were engaged in making whisky together; that, due to a difference between Walker and McCurdy, Walker sold his interest in the still to Mc-Curdy. Henry testified that during the day preceding the homicide, at night, Walker had asked Henry if McCurdy had gone before the grand jury at Comanche that day. Henry said he did not know, and Walker-replied: “We will kill the son of a bitch if he gives anything away.” There was evidence that, in the evening of the day on which the homicide took place, the appellants Howard and Walker, met the witness La Grone at the village of Hasse. Walker asked him if he had seen Jack McCurdy, and, upon receiving a negative reply, said that if he ever saw Jack McCurdy any more, no one else would ever see him alive. Mc-Curdy had been at Hasse on the morning of that day. Other testimony in the case indicates that it was a short time after this conversation that Howard and Walker arrived at the home ' of Willman where the homicide took place. Henry also testified that, when Willman and Walker led Mc-Curdy from near the house to the place -where the homicide took place, Howard led him (Henry) off in another direction. After Mc-Curdy was struck, according to his testimony, Henry fled. Howard fired at him and commanded him to return. Howard and his companions then forced Henry to assist them in taking McCurdy’s body and depositing it upon the railroad track.

The testimony in the case on the previous trials will be found in Willman v. State, 242 S. W. 746, 92 Tex. Cr. R. 77; Howard v. State, 242 S. W. 739, 92 Tex. Cr. R. 223; Walker et al. v. State, 252 S. W. 543, 94 Tex. Cr. R. 653; Willman v. State, 268 S. W. 933, 269 S. W. 801, 99 Tex. Cr. R. 259. Reference is made to the reports mentioned for a more comprehensive statement of the facts.

Appellants, in support of their contention . that there was error in refusing to charge * on manslaughter, cited many cases to the point that, where the issue of manslaughter is raised by the evidence, the jury, in an appropriate instruction, should be called upon to solve the issue. See McLaughlin v. State, 10 Tex. App. 359; Halbert v. State, 3 Tex. App. 656; Arnwine v. State, 90 S. W. 39, 49 Tex. Cr. R. 5; Pickens v. State, 218 S. W. 755, 86 Tex. Cr. R. 657; Steen v. State, 225 S. W. 529, 88 Tex. Cr. R. 257; Lewis v. State, 231 S. W. 113, 89 Tex. Cr. R. 345. The issue of manslaughter arises when, by adequate cause, the mind of the assailant is rendered incapable of cool reflection.. From the testimony quoted and relied upon by the appellants, it appears that the deceased, Mc-Curdy, knew that Walker had committed a felony, and that Walker was apprehensive that McCurdy -would disclose his knowledge to the grand jury. There were circumstances leading to the belief that, on the day of the homicide, appellants believed that Mc-Curdy had been to the county seat. Walker indicated his intent to kill McCurdy upon conditions named. Immediately before the tragedy, McCurdy was asked by Walker, in the presence of Willman and Howard, if he had been before the grand jury. His answer was evasive' aud calculated to convey the impression that he had. Walker and Willman, acting on concert, then conducted McCurdy in one direction, while Howard led Henry in another; McCurdy having in the meantime been told by Walker that it would be his business. Upon repeating the demand to know whether McCurdy had been to the grand jury and again receiving an unsatisfactory answer, the fatal blows were struck by Walker; Willman acting with him, and Howard keeping guard over Henry. After the tragedy, Walker, Howard, and Will-man placed the body of the deceased upon the railroad track, where it might be made to appear that he had been killed by a train. In this enterprise, Henry, through coercion, co-operated.

Appellants’ counsel, in the conduct of the cases on the various trials and appeals, have shown commendable fidelity to the interests of their clients as well as ingenuity and skill in the conduct of the trials and appeals. However, we cannot find sanction in the law which supports their contention that on the-present record an instruction upon the issue of manslaughter was erroneously omitted. The evidence reflects premeditation and deliberation.

In the seventh paragraph pf the court’s; charge, we find the following:

“You are further instructed that the witness Earl Henry is an accomplice, and you cannot convict the defendants upon his testimony alone, unless you first believe his testimony is true, and that it connects the defendants with the offense charged, and even then you cannot convict defendants upon said testimony unless you .further believe that there is other testimony in the case, corroborative of the accomplice’s testimony, tending to connect the defendants with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendants with its commission, and in connection you are instructed that an accomplice witness cannot corroborate himself by his own acts and declarations.”

From the paragraph of the charge quoted above and others, as compared with the main charge, we infer that corrections or changes were made in the main charge before it was read to the jury.

In excepting to the present paragraph, the use of the word “alone” was criticized; also the failure to embrace in the paragraph of the charge in question the law of reasonable doubt. The charge given has been the subject of discussion in many decisions of this court. The writer cannot better express-his views than by quoting from the opinion in Anderson’s Case, 254 S. W. 986, 989, 95 Tex. Cr. R. 846, 353, as follows:

“The paragraph of the charge quoted is like that suggested in the seduction case of Campbell v. State, 123 S. W. 583, 57 Tex. Cr. R. 302. Since this case was written, this court has on several occasions indicated that the form of charge therein suggested did not accurately present the law, but owing to the state of the testimony in sainé cases the use of the form was not calculated to injure the accused, and was therefore not reversible error (Abbott v. State, 250 S. W. 188 [94 Tex. Cr. R. 31]; Watson v. State, 237 S. W. 298, 90 Tex. Cr. R. 583) while in other cases presenting a different state of facts it might be misleading and harmful. See Standfield v. State, 208 S. W. 532, 84 Tex. Cr. R. 437; Walker v. State, 252 S. W. 547 [94 Tex. Cr. R. 653]. Where the testimony •of the accomplice is so specific in giving the details of the offense as to show without question. that the offense was committed through the agency of the accused, or when the other testimony is conclusive of guilt of the accused, the use of the form mentioned has been held harmless, though inaccurate. See Watson v. State, supra; Abbott v. State, supra; Walker v. State, supra. In instances where the testimony of the accomplice, while criminating in its nature, does not embrace all of the elements of the offense as well as connect the accused with its commission, the.form used is misleading, in that it in terms tells the jury that they may convict upon the testimony of the accomplice if they 'believe it is true and believe there is other corroborative testimony tending to ■ connect- the accused with the commission of the offense. It is obvious that in many cases where the testimony of an accomplice is used his testimony may be tnie and sufficiently corroborated, but still not prove his guilt. Illustrations emphasizing this thought will be found in the Abbott Case, supra.”

See Spears v. State (Tex. Cr. App.) 277 S. W. 142.

Cognizant of the trouble that has often arisen from the use of the form mentioned, it is the subject of wonder that its use is continued. In the present case, however, we find it, and must, as we have done in other instances, measure its sufficiency by the evidence in hand. It is to be noted that the charge given requires the jury, as a predicate for conviction, to believe the testimony of the accomplice to be true; also to believe that it connects the defendants with the commission of the offense charged, and that even then no conviction could be had upon the téstimony of the accomplice in the absence of other testimony tending to connect the accused with the offense charged. In the present case, the criminating testimony coming from the accomplice embraces all of the elements of the offense, and connects the accused with its commission. It therefore comes within the purview of Abbott v. State, supra; Watson v. State, supra; Anderson v. State, supra; and the precedents therein cited. If, in the present case, the jury believed that the witness Earl Henry told the truth in the particulars in which he related the conduct of the accused, no element of the offense or the connection of the accused therewith is wanting. The corroboration comes from circumstances which have been discussed in some detail in the opinions on the former appeals. See Walker v. State, 252 S. W. 543, 94 Tex. Cr. R. 653; Willman v. State, 268 S. W. 933, 269 S. W. 801, 99 Tex. Cr. R. 259. A review or discussion of them is deemed unnecessary, further than to say. that they are deemed sufficient to meet the legal measure of corroborative testimony.

Appellants requested a special charge .as follows:

“Gentlemen of the jury, it is the testimony of Earl Henry that is principally relied on in this case for conviction. Now, if you should believe and find from the evidence as a fact that at the time of the alleged killing Ed Walker and Gibbs Howard rode up to where Jack McCurdy, Earl Henry, and W. W. Willman were talking and that they got down and walked up to said parties, and that Ed Walker took the said Mc-Curdy by his arm and defendant, W. W. Will-man took the other arm of deceased, and they walked off some 10 steps, and that the said Ed Walker asked the said McCurdy if he had given anything away before the grand jury, and the said McCurdy said, ‘None of your God damn business,’ as testified to by the said Henry, and if you should further find and believe from the evidence that the said Walker reached down and picked up some instrument and struck the said McCurdy over the head with it and killed him, and if you should further find that the said I-Ioward fired a shot in the direction of the said Henry, as testified to. and if you should find and believe that there is other evidence in the record, aside from that of the witness Earl Henry which corroborates his said testimony sufficiently, as corroboration is defined to you, and you should believe both the evidence of the said Henry and the corroborating testimony to be true, still you cannot convict the defendant Gibbs Howard for any grade of homicide, unless you should further believe and find from the evidence, beyond a reasonable doubt that the said Gibbs Howard knew before and at the time the said blows were struck by the said Walker that said Walker was going to strike and was striking the deceased with the specific intent to Mil, and unless you so find you will acquit the defendant Howard, and say by your verdict, ‘Not guilty.’ This chai’ge is given you as a part of the law in this case, and you will consider it and give it equal weight with the main charge herein.”

The court also charged on alibi, which was the defensive theory of the appellants, and on aggravated assault, based upon the absence of intent to kill. He also gave several special charges, one instructing that, if Walker struck the blow with an instrument which was not a deadly weapon without the intent to kill, there could be no conviction of any degree of homicide. Another special charge given was, in substance, to the effect that, if the instrument was not a deadly weapon, there could be no conviction, unless the evidence showed that Walker had a specific intent to kill.

The court instructed the jury on- one phase of the law of principals, namely, that one is a principal who, 'being present and knowing the unlawful intent, aids by acts, or encourages by words or gestures, those engaged in the unlawful act. See Vernon’s Tex. Orim. Stat. vol. 1, art. 75.

The evidence in the case, and in fact, the recitals in the special charge requested, seem to raise at least one, if not two, other elements of the law of principals. In article 78, Vernon’s Tex. Grim. Stat. vol. 1, it is declared that any person who advises or agrees to the commission of the offense and is present when it is committed is a principal thereto, whether he aids or not in the illegal act. According to the evidence, Howard was present when McCurdy was killed. He, in company with Walker, had been searching for McCurdy at Hasse; had been informed that he had been there, and in Howard’s presence (according to the evidence of Ea Grone) Walker said that after he saw McCurdy no one else would ever* see him alive. At the time this remark was made¡ Walker and Howard were on their way from Hasse to the home of Willman, where the homicide took place. In Howard’s presence, Walker there accosted Mc-Curdy about reporting to the grand jury. The conduct of Walker, Willman, and Howard, as detailed by the testimony of Henry, is indicative of a prearrangement to kill the deceased. Walker and Willman, after exchanging a signal, took McCurdy to one sidej and Howard, apparently acting with them, took Henry aside. When the fatal blow was struck by Walker, and Henry sought to escape, Howard restrained him from doing so by firing at him, and also acted with Walker and Willman in forcing Henry to aid in endeavoring to suppress the evidence of the crime by putting the body of McCurdy upon the railroad track.

In so far as the special charge refers to the knowledge of Howard, it covers a subject which was embraced in the main charge to the extent that in that charge the jury was told, in substance, that to hold Howard as a principal, he nmst have known, of the unlmoful intent of Walker m striking the fatal blow. That is not the language but the meaning of the charge that was given.

The only affirmative defense is alibi, which was accurately submitted to the jury.

There was no affirmative evidence that Howard was ignorant of Walker’s intent, and therefore the law did not demand an affirmative charge on that issue. The charge requested was so framed as to withdraw from the jury the evidence which tended to make Howard a principal under article 78, supra. It was therefore properly refused.

The motion is overruled.  