J. R. v. State , 29 Tex. Ct. App. 349 ( 1891 )

WHITE, Presiding Judge.

Appellants were jointly indicted, tried, and convicted for the murder of one Frank Patterson. They were each found guilty of murder of the second degree and the punishment of each affixed at twenty-five years imprisonment in the penitentiary. Deceased was killed in the public road whilst passing the house of appellant J. R. Floyd. He was shot with a Winchester rifle by appellant Erwin Floyd, who was at the time of the shooting inside of or upon the gallery of his father’s house. Appellant J. R. Floyd and deceased had had several previous altercations and were carrying their guns for each other.

But one bill of exceptions is contained in the record, and that was saved to the omission of the court to charge and the refusal of the court to give defendants’ special requested instruction upon manslaughter. There was no error in refusing to submit the law of manslaughter in this case. As aptly said by the Assistant Attorney-General in his brief in this case: “There are but two theories in this cáse—one of murder and the other of self-defense, with serious questions as to the latter being in the case. Defendants either shot deceased as he was going along the road and without cause, or they shot him for pointing his gun at' the house or the peopie therein. In the one instance it was murder;’ in the other the law of: self-defense was invoked and given by the court.” Green v. The State, 27 Texas Ct. App., 244.

As stated above, the evidence shows that the killing was done by Erwin. Floyd. J. R. Floyd, the father, was in the house at the time, but did not. shoot, nor is there any testimony whatever going to show that.at the time-Erwin shot he, the said J. R. Floyd, was aiding or encouraging him in any manner, either by words or acts, in the shooting.

As to appellant Erwin Floyd, we have been unable to find any reversible error in the record of his conviction, and consequently the judgment-as to him will be affirmed.

As to appellant J. R. Floyd, in our opinion the evidence is insufficient-to support the verdict and judgment. It is true he, equally with Erwin, • had had previous serious personal difficulties with deceased; had drawn, his gun upon deceased and threatened his life; had been chased home by the deceased only the day before, both parties being armed with Win-, chesters. Still at the time of the killing the evidence fails to show that-he was in any way. any further than as above stated a party or consenting to it than the fact that he was present in the house.

Under our statutes it requires more than the bare presence of a party to constitute him a principal offender. Penal Code, arts. 74, 75, et seq. There must be an acting together. “ Concealment of the knowledge that a felony is to be committed will not make the party concealing it an accessory before the fact, nor will a tacit acquiescence, or words which amount, to a bare permission, be sufficient to constitute this offense.” Noftsinger v. The State, 7 Texas Ct. App., 302; Smith v. The State, 23 Texas Ct. App., 358.

Notwithstanding his previous personal difficulties with deceased, appellant J. R. Floyd may never have intended to kill him, and if he ever had, may have abandoned such intention; and he may never have consented to,, much less aided and encouraged Erwin in this killing. If not, then liéis not in law and can not in reason or justice be held guilty of the murder.

It is true that the State impeached defendants’ witness Etta Floyd with, regard to his, defendant J. R. Floyd’s, actions and conduct on the occasion of the killing, by proving that she, the witness, on the morning of the killing went to the house of one Thrailkill and there in' the presence* of several parties stated, “We took the gun away from Erwin' when we-saw Patterson coming from home, to keep brother from shooting; and if pa had not taken the gun from us and given it back to Erwin, Patterson would not have been killed.” She denied that she had made this statement, and the prosecution proved that she had made it. The prosecution did not prove that the statement was true, but only that the witness had made it. Such proof on the part of the State could only affect the credibility, of the witness.' It was not evidence of the guilt of the defendant..

■ Aside from this impeaching testimony, we have found in the record no evidence connecting the appellant J. E. Floyd directly with the act and fact of the killing, and the evidence of his complicity in the killing is wholly insufficient to warrant the verdict and judgment against him, wherefore the same is reversed, and as to him the case is remanded for another trial.

Affirmed as to appellant Erwin Floyd.

Reversed and remanded as to appellant J. R. Floyd.

Willson, J., absent.