author: DAVIDSON, J. HARPER, J. HARPER, J. DAVIDSON, J.

text:
    BUCKLEY v. STATE.
    (No. 3764.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    On Motion for Rehearing, Dec. 22, 1915.
    Appellant’s Rehearing Denied Jan. 12, 1916.
    Dissenting Opinion Jan. 19, 1916.)
    1. Homicide <&wkey;254 — Murder in Second Degree— Sufficiency of Evidence.
    Evidence in a prosecution for homicide held to sustain a conviction of murder in the second - degree.
    [Ed. Note. — Dor other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. &wkey;254.]
    2. Ckihinal Law <&wkey;800 — Instructions — Definition of WoSd.
    In such prosecution it was not necessary for the court to define the meaning of the word “corroborate,” as it has a definite, well-understood meaning.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. <&wkey;>800.]
    3. Criminal Law <&wkey;423 — Evidence — Acts of Conspirators.
    In a prosecution for homicide, where. the testimony showed a conspiracy to whip a negro or negroes, evidence as to whipping other ne-groes, shooting into other houses, and going to the house of one to kill him for choking one of the conspirators was admissible, as the acts and conduct of each conspirator in the execution of the common purpose and design are admissible against each of the conspirators.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. <@=> 423.]
    4. Homicide <&wkey;29 — Independent Motive of Conspirator.
    A conspirator to whip one person would not be guilty, where one of the conspirators killed another person upon an independent motive of his own.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. &wkey;>29.]
    5. Homicide <&wkey;29 — Decree—Ratification.
    In such case no subsequent ratification of a murder would render defendant liable as a principal offender, if he was not liable as a principal at the time of its commission.
    TEd. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. &wkey;29.]
    6. Criminal Law <&wkey;778 — Instruction — Burden of Proof.
    In a prosecution for homicide, where it appeared that defendant had conspired to whip a negro, a charge that although defendant was present when the wife of such negro was killed by one of the conspirators, yet, if there was a reasonable doubt as to whether he aided or encouraged such conspirator, or knew of his intention to commit an dnlawful act which might naturally and probably lead to the killing of the. wife, to acquit defendant, did not shift to the defendant'the burden of showing that the killing was done upon an independent motive, but gave him the benefit of the reasonable doubt on that affirmative defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857,1960, 1967; Dec. Dig. &wkey;778.]
    7. Homicide <&wkey;29 — Intent—Conspiracy.
    Although defendant was present when one was killed by a fellow conspiratox-, yet, if there was a reasonable doubt as to whether he knew of such conspirator’s intent to commit an unlawful act that might lead to such killing, or that, if present, he did not aid or encourage such conspirator, he would be guilty of no offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. &wkey;>29.]
    8. Homicide <&wkey;289 — Instruction — Evidence.
    In a prosecution for homicide, where it appeared that defendant and others conspired to whip a negro, and where the evidence raised the issue that the negro’s wife was accidentally killed by a shot fired by one of the conspirators with the intent to kill the negro under circumstances in which it would have been murder had the negro been killed, an instruction that if the negro’s wife was killed by mistake or accident, when it was intended to kill the negro, the jury would convict, was applicable to the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 594; Dec. Dig. <¿=>289.]
    9. Homicide <&wkey;17 — Murder—Malice—Statute.
    In view of Pen. Code 1911, art. 48, providing that one intending to commit a felony and through mistake or accident doing another act which, if _ voluntarily done, would be a felony shall receive the punishment for the offense actually committed, one shooting at anothfer and killing a third person is guilty of murder upon implied malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 23; Dec. Dig. <&wkey;17.]
    Davidson, J., dissenting.
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Walter Buckley was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Forse & Hamilton, of Newton, and J. T. Adams, of Orange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder in the second degree, his punishment being assessed at 10 years’ confinement in the penitentiary.

The case originated in Newton county, and was transferred on change of venue to Jasper county, where it was tried. It may be stated this is a companion case to Harvey Davis v. State, reported in 172 S. W. 978. The two convictions grew out of the same transaction. It is deemed unnecessary to go into a detailed statement of the voluminous testimony. It is sufficient to state it substantially shows that Dock Hughes, Tom Hughes, Jr., Harvey Davis, and appellant got together with the understanding that they were going to whip a negro, and it may also be inferred that they may have gone far enough in their agreement to include more than one negro. In pursuance of this understanding, they went together, Harvey Davis being on horseback and the other three in a buggy; at least the four left in company and went to two or three different places and whipped two or three negroes. About midnight they concluded at the instigation of Dock Hughes, to go to the residence of Joe Kellum and give him a whipping. The reason for this is stat-eel to lie that it would make him raise á better crop than if he did not have the whipping. They reached Kellum’s house somewhere between 12 and 1 o’clock at night. Dock Hughes sought entrance at the door, but did not obtain it. Tom Hughes, Jr., a relative of Dock Hughes, and Dock Hughes finally entered the house by breaking open the door. Kellum declined to let them enter the house. He was sleeping on one bed, and his wife on another in the same room. The contention of the state is that appellant went around to another door to prevent Kellum escaping from that direction, but it seems he did not remain there, but came away. At any rate, Dock Hughes and Tom Hughes entered the room. Grace Kellum, the deceased, expostulated with them for coming in her room, that she was dressed only in her night clothing, and asked them to leave. Grace Kellum had gone from her bed over to her husband’s bed, and was sitting on it. Her husband, in the meantime, had obtained his gun, and secreted himself at the foot of the bed out of sight. Tom Hughes lighted a match. This went out, and he called for more matches, but deceased informed him they had none. He found a lamp and undertook to light it, but it contained no oil. About that time the shooting began. Joe Kellum, a state’s witness, testified that Dock Hughes fired first. Tom Hughes, who turned state’s evidence, testified that Joe Kellum fired first. Joe Kellum’s shot took effect in Dock Hughes’ body, from which he died. Dock Hughes shot Grace Kellum twice in the right breast. When Tom Hughes discovered that Dock Hughes had been shot, he picked up Dock’s gun and walked to where the woman was, for the purpose of shooting her again. He found her in a dying condition, making a noise, indicating what we would call the “death rattle.” When he did this appellant took the gun from him and prevented further shooting. She died shortly afterwards. The survivors were indicted for killing Grace Kellum.

The theory of the state was that this was a conspiracy between the parties to whip negroes, and among them Joe Kellum, and, that being true, that all the acts and subsequent events brought about by the four implicated made each responsible for everything that occurred, even to the killing of Grace Kellum. The appellant combated this theory from every standpoint that would suggest itself to counsel. They contend, first, that when Dock and Tom Hughes went into the house, he, appellant, would be bound no further than the agreement between them, if such an agreement was made, as contended by the state, to get Joe Kellum out and give him a whipping; that this did not contemplate a killing of Joe Kellum. The writer is disposed to agree with that theory of the case, but he may be in error about that under the recent case of Serrata v. State, 171 S. W. 1133, an opinion by Judge Harper, coincided in by Judge Prendergast. In that case I entered my dissent. But he that as it may, perhaps the court would have been justified in submitting the case upon the theory that, as they went there for the purpose of whipping Joe Kellum, had they killed Joe Kellum, appellant might have been responsible; he being there about the house at the time of such trouble. But Joe Kellum was not killed; he was not even shot at. Tom Hughes, the state’s witness, who turned state’s evidence, testified: That the woman was shot by Dock Hughes on purpose. He shot her twice while she was sitting on the bed, and, as I understand the record, Joe Kellum was not shot at, and was not even seen by the parties after they entered the house. That he fired from behind the foot of the bed and killed Dock Hughes, and Dock Hughes than killed Joe Kellum’s wife. There is some evidence that Grace threatened the life of Dock and Tom Hughes after they entered the room. There is no evidence in this record, nor intimation from any source —-state or defendant — that Grace Kel-lum was included in any of their agreements, or that she was even thought of when they went to Joe Kellum’s house. They went there to whip Joe Kellum. They did not seem to have known Grace Kellum was at home. If appellant and Harvey Davis and the two Hughes agreed to whip Joe Kellum, under the Serrata Case they possibly might be guilty of anything that followed, so far as Joe Kellum was concerned. But this rule certainly ought not to apply to Grace Kellum and her tragic ending, so far as appellant is concerned. He knew nothing of it until after the killing. It was not within the contemplation of any of the parties at the time they went to the house of Joe Kellum.

The court charged the jury on the law of principals in a general way, and then gave this charge:

“If you believe from the evidence beyond a reasonable doubt that the defendant, Walter Buckley, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence that the defendant, Walter Buckley, did- not aid or encourage the said Dock Hughes, Harvey Davis, or Tom Hughes, Jr., or either of them, to kill Joe Kellum or Grace Kellum, by any word or act or gesture, and did not know the unlawful intention, if any,, of the said Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead in its natural or probable consequences to the killing of Joe Kel-lum or Grace Kellum, or if you have a reasonable doubt about this, then you will find the defendant, Walter Buckley, not guilty.”

Exception was reserved to this charge both before it was read to the jury and aft-erwards in motion for 'new trial, and reserved in a bill of exceptions independent of the original exceptions, among other things, that it placed the burden of proof on defendant, changed the reasonable doubt, and charged affirmatively that the jury must believe he did not aid or encourage the others in killing either Joe Kellum or Grace Kellum, before they could acquit him of killing Grace Kellum.

Again, the court charged the jury:

“If you believe from the evidence beyond a reasonable doubt that Walter Buckley, either alone or acting as a principal with Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, as that term has heretofore been defined to you, in the county of Newton, and state of Texas, on or about the 10th day of August, A. D. 1914, with a deadly weapon, did shoot and thereby kill Grace Kellum by mistake or accident, and at the time of the killing it was his intention, either alone or acting as principal with Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, to kill Joe Kel-lum, and you further believe beyond a reasonable doubt that said killing was committed with malice aforethought, then you will find the defendant, Walter Buckley, guilty of murder.”

Exception was reserved also to this charge and counter charges asked. These matters are properly presented without going into a detailed statement. We are of opinion that these charges were not correct. The burden of proof is on the state, and not the defendant. The defendant does not have to prove that he did not aid or encourage the killing. The state must prove that he did, and again the court coupled the killing of Joe Kellum, which may have possibly been within the terms of their agreement to whip him if he resisted, with the killing of Grace Kellum; it coupled Joe Kellum with Grace Kellum; and the jury is charged that if these parties killed either, they must find that appellant did not aid and encourage, before they could acquit. The second charge, wherein the court charged the jury with reference to a mistake or accident on the part of Dock Hughes and others in killing Grace Kellum,- was not raised by the facts. Tom Hughes, Jr., who turned state’s evidence, makes it apparent that Dock Hughes killed the woman, deliberately and intentionally firing two shots while she was sitting on the bed. There is no evidence from this witness, as I understand this record, that Dock Hughes shot at Joe Kellum. In fact, he seems not to have shot at him; he was hid behind the bed, Dock shot and killed the woman. There was no mistake or accident in this matter. The theory of mistake or accident is based upon the theory that he was shooting at Joe Kellum, and by mistake or accident killed Grace Kellum. There is no evidence to sustain that proposition. The state’s evidence excludes it. If Joe Kellum had been killed, appellant might be guilty of the homicide. But he certainly ought not to be held responsible for the act of Dock Hughes killing the woman sitting on the bed, either by mistake, accident, or purposely, under the facts of this case, and the jury should have been so instructed. In other words, before appellant could be convicted in this case for the death of Grace Kellum, it ought to have been shown that she .came within the terms of the agreement made between them. If after Dock Hughes got in the house he changed his mind, about the matter, or concluded to kill this woman, appellant ought not to have been charged with that unless he, in some way, knew and acquiesced in it before the killing. The state’s evidence excludes that. The subsequent ratification would not have made him responsible. The doctrine of ratification of crime does not obtain. That was expressly decided in Walker v. State, 29 Tex. App. 621, 16 S. W. 548. In other words; to restate this case, as the law, it seems, ought to be enunciated, if, when these parties started out that night to whip one or more negroes, and finally by distinct agreement among themselves said they would whip Joe Kellum and thus cause him to make a better crop, and they went to his house for that purpose, all being there at the .house, in or about it, and around the yard, and Joe Kellum was killed under those circumstances, appellant would be brought within the terms of the homicide law, especially as announced in the Serrata Case, supra, and might be punished for the act of Dock Hughes. But he would not be responsible for the independent act, and with which he was in no way connected, and not within the terms of the original agreement, either directly or indirectly, in killing the woman. He ought not to be held responsible for that homicide, and the jury should have been told so plainly.

For the error in the charge of the court and failure of the court to submit the correct issues, this judgment is reversed, and the cause remanded.

HARPER, J.

While not agreeing to all that is said in the opinion, I concur in the reversal of the case. Will write my views later, setting forth plainly the portion I concur in and the part I do not agree to.

On Motion for Rehearing.

HARPER, J.

On a former day of this term this case was reversed and remanded, the writer of this opinion at the time agreeing to the reversal, but stating at the time he did not agree to all that was written, and would write his views later. Since then we have had occasion to study this record carefully, as well as the companion case of Harvey Davis, recently decided, and we have become convinced that the court erred in reversing the case, and therefore the motion for rehearing should be granted.

In this case the evidence would show that appellant, Dock Hughes, and Tom Hughes were at Preston Hughes’ store in Bon Wier about 3 o’clock on Monday, August 11, 1914, in the afternoon, when Harvey Davis came along and treated them all to cider in Preston Hughes’ store, that Harvey Davis then started, when Dock Hughes asked him what was his hurry, and Davis replied, “I’ve got to get me a negro,” Dock Hughes replying, “You needn’t be in such a hurry — I’ve got to get me one too.” That Harvey Davis and Dock Hughes then walked off to themselves and held a conversation, which was not testified to. After this conversation Davis went on off, and Dock Hughes came back in the store, and when the train came along, Dock Hughes, Tom (Hughes, and appellant went six miles distant, and purchased four quarts of whisky, returning to Bon Wier about 7 o’clock. These three, the two Hughes and appellant, got in a buggy, taking the whisky with them, and went to the home of Harvey Davis, who there joined the other three, and all four went down into what is called the “negro settlement,” first stopping near the home of June Thomas, intending to give him a whipping. They took a mosquito bar and made masks, so that the negroes would not know them. Not finding June Thomas at home, all four started toward the negro schoolhouse, where the negroes were having a school meeting. On the way to the schoolhouse two negroes were seen going towards June Thomas’ house, and Tom Hughes, appellant, and Harvey Davis went back to this negro’s house, but again failed to find him. While they were doing this Dock Hughes went into the negro schoolhouse and fired off his gun, a negro, Word Stepney, getting hold of the gun until he could get out of the house. All the negroes were run from the schoolhouse, and when appellant, Harvey Davis, and Tom Hughes returned, Dock Hughes was standing by the house laughing. The party had a rifle and shotgun with them, and after they all got back, both the rifle and shotgun were , fired into the house, breaking out the windows. It is clear that Dock Hughes fired the rifle, but the evidence does not make it clear who fired the shotgun into the house, but places all four men there together. It appears that Dock Hughes thought he saw some one behind a tree, and called to “Walter” to go around the tree. Only one Walter is shown to be present — appellant. Finding no one behind the tree, Dock Hughes told them Word Stepney had choked him while he was in the schoolhouse, and he was going up to his house and kill him. All four went up to Word Stepney’s house, apparently for this purpose, but the negro was hid in the adjoining fields, and they failed to find him. They then went to the house of A. Clark, a negro preacher, and Harvey Davis and Dock Hughes went in the house and called for some liniment, the other two remaining in the buggy. Failing to get the liniment, Harvey Davis began whipping Clark, and made him get down and pray. Dock Hughes then threw Clark out of doors. The whipping was done with a mule whip. The negroes say that after Clark was thrown out some one fired into the house. Tom Hughes testifies it was Dock Hughes who shot into the house, while the negroes would have the shots by some one else, while Harvey Davis and Dock Hughes were whipping Clark and throwing him out of the house. The negroes and Tom Hughes testify that the four men then went to the house of Mary Lewis, got Jim Farmer, and carried him off about 60 feet, and caused Jim to kneel down and pray. Another negro, Elzie McCain, came up, and they made him kneel down and pray, and then whipped him and run him off. Joe Helium, whose wife was killed that night by Dock Hughes, lived about 500 yards from Mary Lewis’ house. When they left Mary Lewis’ house they went to Joe Helium’s to whip him, it being between 12 and 1 o’clock at night. The testimony of Tom Hughes shows that when they got to Helium’s appellant, Walter Buckley, was placed at the back door to catch Joe if he undertook to escape that way; that Dock Hughes and Harvey Davis went to the front door and called Joe, Harvey Davis telling him that his horse had gotten loose and he wanted him, Joe to help catch him. Joe told him his wife was unwell, when they told him if he did not open the door they would shoot into the house. Joe got behind the bed. The door was broken open, and Dock and Tom Hughes entered the house, where the woman was killed. Tom Hughes testifies that Joe Helium fired first, while Joe swears that Hughes fired first. The evidence will be further discussed in disposing of the questions raised.

It is contended that no witness outside of the accomplice Tom Hughes places appellant at the house when Grace Helium was killed. Rev. L. C. Dowden places all four men together when they were at Preston Hughes’ store. Tom Gibson places appellant, Dock, and Tom Hughes together when they started to Harvey Davis’ that night. Tom Hughes has appellant with them all the time, and at the place of the killing. When the men are seen that night at the various and sundry places, four white men were together, and the circumstances conclusively corroborate Tom Hughes in his testimony that appellant was present, not only at the time Grace Helium was killed, but at each and every one of the other places where they stopped, shooting into houses, whipping negroes, and making them kneel and pray. Neither was it necessary for the court to define the meaning of the word “corroborate.” It has a definite, well-understood meaning.

Appellant also insists that the testimony about whipping other negroes, shooting into other houses, and testimony about going up to the house of Word Stepney to kill him for choking Dock Hughes, was inadmissible, and the testimony ought to be limited down to what occurred at the house of Joe Helium. When the testimony as a whole shows a conspiracy, each step in the conspiracy is properly admitted in testimony, and the acts and conduct of each conspirator in the execution of the common purpose and design are admissible against each, of the conspirators. See Branch’s 'Crim. Law, § 240, and cases cited.

Appellant insists, however, that, if the conspiracy was to whip Joe Kellum only, and Dock Hughes hilled Grace Kellum upon an independent motive of his own, he would not he guilty. To this proposition of law we readily accede, and agree that the authorities cited by Judge DAVIDSON in the original opinion and in the opinion on the motion for rehearing correctly so hold, and that no subsequent ratification of the murder, if he was not liable at the time of its commission as a principal, would render him liable as a principal offender. To these propositions of law, announced by Judge DAVIDSON, we entertain no different view from that expressed by him, but the reason we concurred in the original opinion reversing the case, we were then under the impression that the court in his charge had shifted the burden of proof to defendant to show that the killing was done upon an independent motive. If the charge does do so, it would be error, and we would readily concur in the reversal of the case. But this, in our opinion, is not the correct construction to be placed on the language of the charge of the court. After correctly defining who are principals in the commission of an offense, and telling them that the “mere fact that a person is present when an offense is committed does not constitute or make him a principal” in the commission of an offense, but that he must not only be present — he must go further and aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act in pursuance of a common design and purpose — before he would become liable as a principal offender, he instructs the jury:

“And in this case, if you believe from the evidence beyond a reasonable doubt that the defendant, Walter Buckley, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence that the defendant, Walter Buckley, did not aid or encourage the said Dock Hughes, Harvey Davis, or Tom Hughes, Jr., or either of them, to kill Joe Kel-lum or Grace Kellum, by any word or act or gesture, and did not know the unlawful intention, if any, of the said Dock Hughes, Harvey Davis, and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead, in its natural or probable consequences, to the killing of Joe Kellum or Grace Kellum, or if yon have a reasonable doubt about this, then you will find the defendant, Walter Buckley, not guilty.”

In this he instructs the jury that, although they find appellant was present when Grace Kellum was killed, if the jury did not find that he aided and encouraged the person offending by word, act, or gesture, and if he did not know of the unlawful intention to commit an unlawful act which might lead in its natural and probable consequence to the killing of Grace Kellum, they would acquit appellant. ' We were under the impression at the time of the original opinion that the court did not apply the doctrine of reasonable doubt to this proposition of law, but on a more thorough examination of the record, we find that he instructed the jury, in this connection, if they had a reasonable doubt about those propositions, they would acquit. This, to our minds, did not shift the burden to defendant, but gave him the benefit of the reasonable doubt on that affirmative defense as well as all other propositions of law submitted in the charge. And we think it was a sufficient presentation of killing upon an independent motive, for he tells the jury that, although appellant was present at the time Grace was killed, yet, if they had a reasonable doubt as to whether he knew of the intent to commit an unlawful act that might lead to her being killed, or, if present, he did not aid or encourage the person offending, he would be guilty of no offense. As said by Mr. Branch, in section 242 of his Criminal Law:

“Each conspirator is responsible for everything done by his confederate which follows immediately in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as a part of the original design.” Mitchell v. State, 36 Tex. Cr. R. 311, 33 S. W. 367, 36 S. W. 456; Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901; Henry v. State, 54 S. W. 592.

How peculiarly applicable to the facts in this case is the rule laid down in 2 Bush, Crim. Law, § 692:

“If several conspire to invade a man’s household and go to it armed with deadly weapons, ■to attack and beat him, whereupon one gets into a difficulty with him and kills him, the rest are guilty also of murder, though they did not mean it.”

There is, nor can there be, no question in this record that the parties conspired to go to the home of Joe Kellum and whip and beat him with a mule whip. The whip was found on the gallery. They break into his house, carrying guns with them, and in the difficulty following Grace Kellum is killed.

The next contention is that the court erred in instructing the jury that, if Grace Kellum was killed by mistake or accident, when it was the intention to kill Joe Kellum, etc., the jury would find him guilty, it being insisted that there is no evidence to raise the issue that the shot was fired to kill Joe Kellum and by mistake killed Grace Kellum. If there was no evidence to raise such an issue, we would agree that such a charge should not have been given, but from a careful perusal of the record, we arrive at the same conclusion as did the trial judge. The record as a whole discloses they went to this house to whip Joe Kellum; that they broke into the house to get him for that purpose. Grace said nothing to anger them; Joe was hid behind the bed. It is true Joe says that Hughes fired first; but Tom Hughes says that Joe Kellum fired first, and in this he is supported by the negroes who heard the shots. Hughes shot with a rifle. Joe Kellum used a shotgun. On cross-examination of the state’s witnesses, appellant was diligent in proving by them that the shotgun was first fired, and then the rifle. Sheriff Howard testified he went to the scene of the homicide, and examined the premises; that the blood where Dock Hughes fell was between the door and fireplace ; that he noticed some bullet holes in the wall — in the corner near the bedstead, where lay Grace Kellum’s body — that the body of Grace Kellum was on a line from the bloody spot on the floor where Hughes fell and the holes in the wall near the corner of the bedstead; that these bullet holes were about 28 inches from the floor. If Joe Kel-lum fired first, as the testimony of Tom Hughes and the negroes who heard the shots indicates, the evidence raises the issue that Dock Hughes shot at the person who fired the shotgun and all the testimony shows that it was Joe Kellum who fired the shotgun, from his position behind the bed. And, if Dock Hughes shot at Joe Kellum and killed Grace Kellum, in the darkness firing at the flash of the gun, our statute provides (Pen. Code 1911, art. 48) if one intending to commit a felony and through mistake or accident does another act which, if voluntarily done, would be a felony, he shall receive the punishment fixed by law to the offense actually committed. The question of when one person shoots at another and kills a third person has been frequently before the court, and it has always been held by this court that the accidental killing of a third party, in an attempt to slay another, is murder upon implied malice. Breedlove v. State, 26 Tex. App. 445, 9 S. W. 768; Musick v. State, 21 Tex. App. 69, 18 S. W. 95; McConnell v. State, 13 Tex. App. 390; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380; Thomas v. State, 53 Tex. Cr. R. 272, 109 S. W. 155, 126 Am. St. Rep. 786. The evidence, in our opinion, clearly raises the issue that Grace Kellum was killed accidentally by a shot fired with the'intention to kill Joe Kellum, under circumstances in which it would have been murder had Joe Kellum been killed.

The question of “ratification” discussed by Judge DAVIDSON in the opinion on the motion for rehearing is not in the case, was not submitted by the court in its charge, and there is no evidence raising such an issue. The evidence would all tend to show that these four men conspired to go to the negro quarters and whip negroes; that it might become necessary to kill some of them in so doing was their opinion is manifested by their arming themselves with deadly weapons; that in furtherance and in pursuance of the common design a woman was killed, and it grew directly out of the conspiracy entered into by all four of the parties.

The other questions are fully discussed and authorities cited in the companion ease of Harvey Davis v. State, in which the motion for rehearing is this day overruled.

Motion for rehearing granted, and the judgment of the trial court is affirmed.

DAVIDSON, J.

(dissenting). On a former day of this term the judgment herein was reversed and remanded. The state filed a motion for rehearing upon two propositions: First. That the court was in error in holding that the charge to the jury with reference to the attitude of Dock Hughes acting upon an independent impulse was not sufficient. A re-examination of the charge clearly shows the charge totally insufficient. The second proposition relied upon is that the court was in error in holding that, before appellant could be convicted for killing Grace Kellum, it ought to be shown that she came within the terms of the agreement made between the parties. Quoting state’s rehearing motion, it says:

“The state contends that if appellant subsequently ratified the intent of Dock Hughes he would be guilty” (citing Branch’s Grim. Law, § 242).

The writer has never agreed, and.does not believe it is correct to hold or say even, that if Joe Kellum was killed when the original agreement was simply to whip him, and had he been killed by Dock Hughes, the other parties not participating in the killing, and such killing not in contemplation of their original design, appellant would be guilty. If, however, it occurred under an original agreement or within contemplation of such agreement, such party might be held. A party to crime is governed by his own intent and connection with the act committed. The principle was recognized, however, in the original opinion by the writer that if in whipping Joe Kellum it was necessary to kill him to consummate the original design of whipping him in case he did not submt to it, that perhaps might, if the jury so found, make appellant responsible. That was stated in order to conform to what the writer believes the majority opinion held in the Serrata Case. But the doctrine of ratification of crime has no place in criminal law so far as the writer is advised. That question came directly and pointedly in the case of Walker v. State, 29 Tex. App. 621, 16 S. W. 548. Judge White, then presiding judge of the court, delivered that opinion, and his language is here quoted:

“In fact the evidence shows that the act was committed before he had an opportunity to aid by acts or encourage by words. Suppose that, hearing the pistol and turning immediately, he sees his drunken friend confronted by some one with whom he is engaged in a sudden difficulty, which has caused a shooting by the one party or the other, and under the impulse of the moment he strikes and knocks down the man who is confronting his friend. Does that make him a principal offender with Shearra, his friend, who has .already fired the fatal shot which ultimately causes death to his adversary? It is contended by private counsel appearing for the state that it does, because a blow under these circumstances is a ratification and indorsement of whatsoever had been done by Shearra previously in the contest, and, Shearra having done that which proves to be murder, that he indorsed and ratified the act, and thereby became a principal to the murder which Shearra had already committed. We do not know of any such rule of criminal law. The doctrine of indorsement or ratification of an act already committed by another, so as to make the indorser and ratifier equally guilty with the main actor or party indorsed, is a principle and rule of conduct which we have not found laid down by any of the standard elementary authors of criminal law, and we know of no such rule having been announced in any of the decisions of the courts of last resort in this country, nor have we been cited to any authority bearing out that proposition by the learned and distinguished counsel for the state.”

This is as clear a statement of the proposition as can well be made, and by one of the greatest jurists, not only Texas, but America, has produced. The doctrine of ratification of crime is an unheard of principle in criminal law. The nearest approach to it under the Penal Code of Texas is the reception of stolen property after it has been stolen, or an accessory after the act. But those statutes, recognizing the principle that there can be no ratification of crime, relate back so as to make a party who is not a principal in the original transaction guilty of a different offense by participation in subsequent acts. The statutes o’f Texas, by their language, necessary construction, and interpretation, carry out the will and purpose of the Legislature that there cannot be a ratification of a consummated crime viewed from the standpoint of guilt as a principal or original participator in the crime. So far as we know, no court and no state has gone that far or so held. Mr. Branch, in the section cited by the motion for rehearing for the state, cites the authorities very fully, and draws tersely and accurately the propositions of law bearing upon this question. First he says:

“If issue is raised, it is error to refuse to charge that if another killed deceased upon an independent impulse, and not in pursuance of an agreement with defendant, the jury should acquit” (citing Smith v. State, 52 Tex. Cr. R. 29, 105 S. W. 182; Faulkner v. State, 43 Tex. Cr. R. 327, 65 S. W. 1093; Cortez v. State, 43 Tex. Cr. R. 385, 66 S. W. 453).

Again, he states the rule:

“If there is evidence that no more was contemplated than an ordinary battery on deceased, and that another, on an independent impulse, killed deceased, the court should charge affirmatively on such theory, and inform the jury that, if such was the purpose of defendant, and that another, besides the intent and purpose of defendant, killed deceased intentionally, defendant would be guilty of no greater offense than assault and battery” (citing Mitchell v. State, 36 Tex. Cr. R. 314, 33 S. W. 367, 36 S. W. 456; Blain v. State, 30 Tex. App. 706. 18 S. W. 862: Harris v. State, 15 Tex. App. 637).

Again, he states the rule:

“If no more was contemplated than a mere misdemeanor, and one of the parties, beside the intention of the other, killed deceased, those not parties to the design to kill are not guilty of murder” (citing Mitchell v. State, 36 Tex. Cr. R. 311, 33 S. W. 367, 36 S. W. 456; Blain v. State, 30 Tex. App. 706, 18 S. W. 862; Faulkner v. State, 43 Tex. Cr. R. 327, 65 S. W. 1093; Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874; Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102).

He further lays down the proposition that it is error to fail to submit the defensive theory that defendant would not be responsible for the act of his codefendant if the latter exceeded the original design and killed deceased on his own account. Goodwin v. State, 58 Tex. Cr. R. 496, 126 S. W. 585; Cecil v. State, 44 Tex. Cr. R. 454, 72 S. W. 197; Faulkner v. State, 43 Tex. Cr. R. 327, 65 S. W. 1093; Ohapman v. State, 43 Tex. Cr. R. 336, 65 S. W. 1098, 96 Am. St. Rep. 874; Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102; Mercersmith v. State, 8 Tex. App. 211; Stevenson v. State, 17 Tex. App. 636. Citing Turner v. State, 20 Tex. App. 56, he thus states the rule:

“Evidence is insufficient to show defendant guilty of murder if it only shows that defendant, with others, went to deceased’s for the purpose of whipping him, should he acknowledge that he had spoken with disrespect of another, and there is no evidence that defendant intended anything further.”

Cases are also cited to support the proposition that defendant is to be judged by his own intent, and not by the intent of others in a difficulty, unless he adopts and ratifies the intent of such other by aiding him by acts or encouraging him by words or gestures. Bibby v. State, 65 S. W. 195; Beckham v. State, 69 S. W. 536; Leslie v. State, 42 Tex. Cr. R. 65, 57 S. W. 659. These propositions and authorities might be extended indefinitely. The doctrine of ratification might be held when the party is aiding the parties as principal.

Applying it directly to this case, if these parties, appellant being one, went to the house of Joe Kellum for the purpose of whipping him, appellant not being in the room where the homicide occurred, and not knowing anything about the matter with reference to the killing of the woman in the room, he might be responsible if the killing of Joe Kellum was in scope of agreement, if Joe had been killed, but certainly he ought not to be held responsible for the killing of the woman, and the jury should have been promptly and affirmatively and clearly so informed as to the law. The evidence does not suggest that the woman was included in any design of the parties. Appellant was not in the room where the killing occurred. Two of the parties went in there for the purpose of getting Joe Kellum out to give Mm a whipping; that was their only design, so far as appellant knew or had heard. There is not the remotest indication by any witness they intended to kill or injure the woman. In fact, it may be said that the woman was not in contemplation, and they did not even know that she was at the house. But there is no evidence in the entire record which shows that there was any intent to whip the woman or have anything to do with her. When they went in the room Joe Kellum secreted himself, and, failing to find him, Dock Hughes shot and killed the woman. Appellant was not in there, knew nothing of it, and had nothing to do with it. He was on the outside is the only contention of the state, and they introduced circumstances to prove that conclusion, but no fact, as the writer understands this record, is shown or offered in evidence that the death of the woman or her whipping, or anything in that connection, was in contemplation by any of the parties, and it seems to have been an entirely independent thought by Dock Hughes after he entered the room. The jury should have been told, under those circumstances, plainly and unequivocally the law applicable to this phase of the case. This was not done. All sorts of objections were urged to the charge and failure to give requested instructions. The question was thoroughly fought, and it was contended by the defense that appellant could not be guilty of killing the woman unless he could be brought within the contemplation of the design to do the act performed, and it was his intent so to do. How he could be held to ratify that killing subsequent to its occurrence, when he knew nothing of the design or act until its consummation, I do not comprehend. Much is said about accident and mistake in the killing of the woman. I fail to find any fact that tends to so suggest. Here is what Tom Hughes, the state’s witness, swears, after entering the room with the deceased, Dock Hughes:

“I struck the match, and me and Dock went in and walked across the house. When we walked across the house, I struck the second match, and I asked the negro woman where the matches were. The negro woman was sitting on the side of the bed. She was sitting on the outside of the bed, next to the room. There was nobody else in the room; that is, I didn’t see anybody else. The match burned out, and I asked where the matches were, and she said she didn’t have any matches, and I asked where the lamp was, and she said she didn’t have any lamp, and about that time I struck the third match, and I saw an old lamp on the mantle. I tried to light it and there wasn’t any oil in it, and the match went out and the negro shot Dock and Dock had the gun on the negro woman. When I had the match, when the negro shot him, he shot the negro wench.”

This is the state’s witness, who saw the occurrence, and. was first cousin to deceased, Dock Hughes. The question of mistake or accidental killing of the woman while shooting at Joe Kellum is not a question in the case. Tom Hughes’ evidence eliminates this, and leaves an intentional killing of the woman by Dock Hughes on his own sudden impulse and independent intent and entirely unknown to defendant and Davis. Dock Hughes did not shoot at Joe Kellum under these facts.

For reasons herein stated, I dissented in Davis v. State, No. 3765, 180 S. W, 1085.
      <gw>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    KING v. STATE.
    (No. 3877.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    1. Criminal Law <®=198 — Former Jeopardy —Time Covered.
    A complaint charging defendant with being a vagrant, in that he “did habitually loiter in and around houses of prostitution,” from the 1st of Cctober, 1914, in view of proof that he had been twice convicted, the last time on June 16, 1915, covering all time prior to that date, if good, covered only the time between that date and the filing of the complaint on October 1, 1915.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 385; Dec. Dig. @=198.]
    2. Vagrancy <@=3 — Offense — Sufficiency of Evidence.
    In a prosecution for being a vagrant, in that he “did habitually loiter in and around houses of prostitution,” evidence held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. @=3.]
    3. Vagrancy @=3 — Offense—Evidence.
    In such prosecution the admission of evidence for the state that witnesses had never seen defendant do anything or any sort of work was prejudicial error, as not bearing upon the charge, and as prejudicing the minds of the jury against him so as to deny a fair and impartial trial.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Deo. Dig. @=>3J
    Appeal from Corporation Court of Tex-arkana ; H. W. Runnels, Recorder.
    Dick King was convicted of being a vagrant, in that he habitually loitered in and around houses of prostitution, and he appeals.
    Reversed and remanded.
    N. L. Dalby, of Texarkana, for appellant. C. G. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The complaint charges appellant with being a vagrant, in that he “did habitually loiter in and around houses of prostitution.” The complaint also fixes the date as being from the 1st of October, 1914; it being sworn to on the 1st day of October, 1915. The evidence shows he had been twice convicted, once in February, 1915, and the other time on June 16, 1915; that these convictions cover all the time prior to June 16, 1915. It is also shown he was out of the state until about the last day of August. A plea of jeopardy with reference to the two former convictions was filed so as to cover the time from October 1, 1914, to June 16, 1915. If the complaint would be good, then it would only cover the time elapsing between the 16th of June and the time of the filing of the complaint, which was the 1st day of October, 1915.

Bryan, for the state, chief of police at Texarkana, testified during the month of September, 1915, he saw appellant at Lula Winn’s house of prostitution. Another policeman, named Hays, testified that he saw him there one time and in bed with Lula Winn. Ray, another policeman, testified that Lula Winn’s house was a house of prostitution, and that he saw the defendant there once in September, 1915. Tennison, another policeman, testified he saw appellant eating dinner with Lula Winn and some girls in September, 1915. The state also proved by Onie Jefries that the defendant nor Lula Winn were in Texarkana during July and most of August; that Lula Winn came bach to Texarhana on August 29, 1915, and appellant was at her house on August 30th. Another witness testified that she had seen defendant at Lula Winn’s and had opened the door for him. She was a servant or inmate. All of these witnesses put these visits in the daytime.

The defendant proved that he was employed in a pool hall and worked during the day until 10 or 12 o’clock at night This he testified to, as did the owner of the pool hall, and a witness also testified he rented appellant a room where he slept; that appellant came to his room usually between 10 and 12 o’clock at night and spent the night there; at least, he would go to bed there, and she did not see any more of him until the next morning. His roommate also testified appellant would come into his room from 10 to 12 o’clock at night and remain all night. They were occupying the same room, each paying the owner of the house $1.50 a week as room rent. The defendant says from the 16th of June until the time the complaint was filed he was at Lula Winn’s house three times, all in the daytime; once he Stayed about 30 minutes, and the other two times only a few moments; that he had worked for Mr. Robertson at the Imperial Pool Hall, and had been rooming at the Tulsa rooming house run by Mrs. Cochran. This is the room testified about by the other two witnesses. He also testified he was absent from Texarkana during July and August, getting back the last day of August. This is the case.

We are of opinion this evidence does not sustain the conviction. These witnesses place him there a few times during the month of September, and but a short time during the daytime in each instance, and the witnesses for the defendant are not contradicted as to the fact that he worked at the pool hall and was only away, as Robertson, owner of the pool hall, testified, a short time each day generally when he went to lunch. See Ellis v. State, 65 Tex. Cr. R. 480, 145 S. W. 339; Martoni v. State, 166 S. W. 1169.

Appellant reserved some bills of exception to the introduction of testimony which we believe should have been sustained. Several witnesses, over his objection, were permitted to testify that they had never seen defendant, Dick King, do anything or any sort of work. Various objections were urged to this, among others, that it was putting his reputation in evidence, was highly prejudicial, and calculated to, and did, inflame the minds of the jury against him, to the extent that they could not give him a fair and impartial trial; that he was charged only with loitering in and around houses of prostitution, and not with failing to follow some occupation. The court qualifies each of these bills substantially as follows:

“When the question was propounded to the witness by the state, the defendant objected on the ground that it was immaterial and irrelevant to any issue in this case; was highly prejudicial to the defendant, in that he was not charged with failing to work or follow some occupation.” ’

We believe these objections were well taken and should have been sustained. He was not charged with failing to work or engaging in some business, but only with loitering around houses of prostitution.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      <£=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. HARPER, J. PRENDERGAST, P. J.

text:
    GERARD v. STATE.
    (No. 3735.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.)
    1. Homicide <@=>234 — Accomplice — Sufficiency op Evidence.
    In defendant’s prosecution on a charge of being an accomplice to a murder, evidence held sufficient to authorize a finding that he was an accomplice if the alleged principal was guilty of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. <@=>234.]
    2. Criminal Law <@=>508 — Evidence—Testimony op Accomplice — Relations op Parties.
    In such prosecution evidence that defendant, 3 or 4 years before the crime charged, had visited deceased, his son, in jail, and had used vigorous denunciatory language toward deceased, and had spit in his face, was admissible in the light of defendant’s admission of going to the jail and denial of the other testimony as to his conduct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. <@=> 508.]
    3. Homicide <@=>169 — Evidence—‘Letter.
    In a prosecution on a charge of being an accomplice to a murder, a letter written by an attorney for the deceased to defendant, his father, in regard to litigation commenced by deceased to obtain a share of the estate of his mother, was admissible if received by defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. <@=>169.]
    4. Homicide <@=>234 — Sufficiency of Evidence-Receipt of Letter.
    Evidence in such prosecution held to show that defendant ha<d received such letter.
    [Ed. Note. — For other, cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. <@=>234]
    5. Homicide <@=>300 — Instructions—Self-Defense.
    In a prosecution on a charge of being an accomplice to a murder, where the facts showed that the principal pursued, and deceased brought on the difficulty, the issue of self-defense should be presented.
    [Ed. Note. — Eor other eases, see Homicide, Gent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <§^>300.]
    Davidson, J., dissenting in part.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    J. B. Gerard was convicted of being an accomplice to a murder, and he appeals.
    Reversed.
    N. A. Coston and Method Pazdral, both of West, and Taylor & Forrester, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with and convicted of being an accomplice to Joe Gerard. The case is one of homicide.

The theory of the state was Joe Gerard did the killing, and that appellant, his father, was his advising accomplice before the homicide, not being present nor participating in the killing. In order to sustain the verdict of the jury and judgment of the court it was necessary to show that Joe Gerard was guilty of murder, and that his father advised him before the killing not only to do the killing, but that such lolling under the advice would be murder. It was necessary, therefore, that the state show such culpability of both parties. If Joe Gerard was not guilty of murder, then appellant could not be, there being no accomplice to the offense of manslaughter, and, of course, if Joe Gerard acted in self-defense, he could not be guilty of murder nor appellant, his father, be guilty as an accomplice. It is always necessary, in proving a case against a defendant charged as being an accomplice, to show the culpability of the principal. There can be no accomplice, criminally speaking, until it has been shown that the principal committed the offense, and that the accomplice previously advised him or furnished the means by which the crime was committed by the principal. This is so by the statute, and all the decisions necessarily must follow the statute, and have done so where correctly decided.

In substance, the evidence shows that Joe Gerard, the alleged principal, killed his brother, Charlie Gerard, at night at the home and residence of appellant and Joe Gerard. The evidence further shows that the deceased was over 21 years of age and had been a wild reckless boy, criminal in many respects, and a violent and dangerous character, and had made threats not only against his father’s life, but against Joe, his brother, and the whole family residing at appellant’s home. He had made threats to destroy the property of his father as well as to take the life of all the family. The deceased had served two terms in the penitentiary for forgery, and had been convicted of misdemeanors, and had been compelled to work out in whole or in part the fines and suffer the punishment imposed in such misdemeanors. Appellant had assisted his boy in paying some of these matters and relieving him as far as he could from punishment upon the promise of the boy to reform and lead a different life. It became useless, and he refused further to assist him. The deceased had forged appellant’s name several times as well as that of his uncle, if not others. Finally, when the father ceased paying these forged checks and assisting him otherwise, on two different occasions he was sent to the penitentiary for forgery. He had been out of the penitentiary but a short time at the time of this homicide, and it seems he had been out of jail in Waco, but a very short time, a few days at most, and on the day preceding the homicide at night he had gone from Waco to West, near where he was raised and near where his father resided. It is shown further that the mother of the deceased had died years ago, and a relative of his seems to have been his guardian; at least, the evidence shows that this uncle settled with him in regard to his mother’s property after he reached his majority, and paid him some money out of the property he inherited from his mother. A short time prior to the homicide and before his return to West, deceased had filed suit against his father for $4,000, alleging this to be his interest in his mother’s estate. He had gone to West during the day preceding the homicide at night, and had seen his father and a party named Hruska, who was interesting himself in this litigation. Either Hruska, or by the advice of Hruska, he had seen his father, as also by the advice of his attorney, Stewart, who resided in Waco, to get his father to pay the amount he claimed. He interviewed his father in the evening in regard to the matter, who declined to pay him anything, “not even 5 cents,” stating that if he got anything he would get what the law would give him, and whatever the law would give him he, the father, would pay. While in jail 2 or 3 days before his return he wrote his brother Joe a letter in which, he stated, in substance, that he was going to kill Joe, his father, and the whole family. He was heard to make threats of a similar nature on the evening preceding the killing at night. One witness testified that he stated he was going out that night and kill a son of a bitch. It is also shown that he had been depredating upon his father’s property at night, and going to his house over the injunction of his father. The evening after interviewing his son and ascertaining the threats of the boy, appellant went to the justice of the peace, Mr. Moore, in regard to the matter, and without going into details on this subject, either from Mr. Moore’s testimony or the defendant’s or the other witnesses, Mr. Moore told him under the circumstances he would have a right to defend his home and his life against intruders who undertook to destroy his property or take his life. It is shown in this connection that appellant interviewed Joe Gerard, principal, and told him of the cireum-stances, and asked Mm if lie Dad any cartridges. Joe told Mm lie had, but in fact be did not have. He also informed Joe of the interview with the justice of the peace. Joe went to Mr. Watt’s and secured two cartridges. These cartridges were used in bringing about the homicide that night. These cartridges were secured after night from Mr. Watt. There are some statements to the effect that the old man had interdicted the deceased from coming on his place any more; that he had been a bad boy, and he did not want Mm about the place; that he had been stealing from him, and forging his name, and doing other things of that sort, and he did not want him about him any longer. There is testimony by the state, contradicted by other witnesses, that other remarks by appellant were made in the presence of the constable, Mr. Bussell, after the homicide, when Bus-sell went to the place where the homicide occurred. These were, in substance, that appellant refused to let the body of the boy be brought in his house after he was killed, and refused to pay for embalming the body of the deceased. This testimony is supposed to have been introduced to intensify the feeling of ill will of appellant towards his son and enhance the idea that this bitterness may have entered into the reason for the killing. Appellant lived about a mile and a half from the town of West. Deceased was in West in the evening. Joe, the alleged principal, testified that he got the two cartridges from Mr. Watt, which is verified by Mr. Watt, and took them home, got Ms gun, and went to sleep upon the gallery. His father was also sleeping on the gallery. Joe Gerard took the gun and laid it down by him, or covered it up near where he was sleeping. During the night he testifies he heard a noise in what is termed the wineroom or winehouse where appellant had a couple of barrels of wine and maybe a small barrel of whisky. Wine had been stolen from this room on several occasions, and it seems that deceased may have taken this wine. In this connection it might be well enough to state that a brother of the deceased, Willie Gerard, testified that his brother Charlie, while in the calaboose or jail in West, sent for him. He went to see him and deceased asked his brother to steal enough wine out of his father’s wine house or room to pay for a couple of guns, with a view of going into robbing express trains. Willie did not do it, and it seems deceased threatened his life. So he, Willie, left home and went away to live with another brother for a while. The state, however, met the fact that Willie left home with evidence to the effect that his father had virtually compelled him to leave home, or placed matters in such relation about him he decided to leave home. Willie Gerard also testified that deceased told him that their stepmother had offered Mm $500 to poison appellant He desired Willie’s assistance in this matter. This was communicated to appellant, and it brought up family disturbance, which was finally settled, the stepmother denying having anything to do with the matter or making such offer. This was settled to the satisfaction of appellant, and he and his wife continued to live together. On the night of the homicide, as before stated, Joe Gerard, the alleged principal, and the appellant were sleeping on the gallery, Joe Gerard having the gun. When he heard the noise in the wineroom, he asked, “Who is that?” Beeeiving no answer, he called again, stating that if they did not answer he would shoot. A man then jumped out of the window of the wineroom and ran. Joe Gerard chased and caught up with him. When he overtook the party he ascertained the fact it was Ms brother, the deceased. It seems the night before, or á night or two before this, some one had been about the place and the dogs had chased him away and into a cane patch. This, of course, was not deceased, because he was then in Waco; at least, there is no evidence of the fact he was in West, the evidence rather indicating he was not. When Joe Gerard overtook his brother, his brother said to him, “Either I kill you or you kill me.” In the scuffle over the gun it was discharged, but without purpose to kill under the statement as shown. Anyhow no result occurred so far as wounding deceased was concerned. When this occurred deceased turned loose the gun, picked up a brickbat close by, threw at and struck Joe Gerard, whereupon Joe Gerard shot and killed him. There is another fact that ought to be stated, introduced by the state. It is this: That in the evemng when appellant was talking with his son Charlie, the deceased, he told him he must keep away from Ms place; that if he came to his place he would kill him like he would a mad dog. It is also in evidence that appellant and Joe Gerard mentioned the fact between them or discussed it, that the deceased had made these threats both by letter and in person to Joe Gerard and to the father, and that the justice of the peace told him if he came around there at night trying to kill them he had.a right to protect his property, and, to use the expression of appellant, he remarked to Joe Gerard that the justice of the peace told him under such circumstances “he would have the right to shoot after him” or to “shoot after anybody.” This may be a sufficient statement of the evidence to review the questions at issue. The record is very voluminous, going into many details, a great deal of which was rather prolix.

Under- this state of case appellant contends the state has not shown that he was guilty of advising his son Joe Gerard to kill the deceased, at least, unless the deceased undertook to destroy his property, or steal it, or commit burglary, or to kill those at his home. The writer is clearly of the opinion the state has failed to show by any evidence that appellant advised or counseled or urged Joe to kill the deceased, unless it be under the circumstances mentioned, and that’ lie would not be guilty of advising a murder under such facts. In order to render appellant guilty it must be shown beyond a reasonable doubt that appellant advised Joe to kill deceased, and under such circumstances, the killing having occurred, that it would be murder on the part of the slayer. To the writer’s mind it is clear the only advice he gave him, if he advised him to kill the boy any more than anybody else, was only in defense of his property or of the lives of those who resided with him.

The court submitted the theory of self-defense as to Joe with reference to the immediate facts of the homicide wherein he shot his deceased brother on account of .the difficulty, the throwing of the brickbat, and incidental matters occurring then. The body of the deceased was found near the house. The witnesses vary as to the distance from about 100 feet to 75 yards. It seems also under the contention of the state that under the facts if the deceased was the man who was in the wineroom, and the state contests the fact that the boy was in the wineroom, but if he was the party who was in the wine-room, that he fled, and that Joe Gerard followed him and engaged in the difficulty with him at the point designated, therefore he had forfeited all rights to do the killing under .the law of justifiable homicide, which authorizes such killing where the party was committing theft at night, or burglary, or .undertaking to kill, etc. The court did not submit the issue of the defense- of life under that statute. Charges were asked and exceptions taken to the court’s refusal to so charge. These are timely preserved and presented in voluminous exceptions, applying the testimony under each contention from the record to such contention. The bills are lengthy and present every possible phase of the case from the testimony, and all manner of exceptions were fully reserved. We are of opinion that this phase of the law should have been given. The guilt of Joe Gerard, who did the killing, was necessary to the guilt of appellant as an accomplice. If Joe Gerard killed to defend himself against the attack of his brother, the jury should have been so instructed, and under such circumstances he would not be guilty, and therefore his father would not be guilty. This particular phase of the law was fairly well given by the court. The jury should- have been further instructed that if Joe Gerard, the alleged principal, killed the deceased after he had burglarized the house or was stealing the wine, .and when he was within gunshot of the building, Joe would be justifiable under the statute which authorizes such killing under such circumstances, and in that event appellant would not be guilty.. If he advised Joe to kill anybody who came.to his house, . even his son, for the purpose of burglarizing his house or for any sinister purpose at night, Joe would be justified under the statute, and appellant could not be guilty as an accomplice, because the question of murder would then be eliminated. None of this phase of the law was given by the court, though exception was taken to the charge for failing to do so, and requested instructions asked. These questions have been discussed and decided in quite a number of cases, and appellant was clearly entitled' to have this phase of the law.given the jury. As to the proposition that, in order to justify a conviction of appellant as accomplice to murder, the evidence must show beyond a reasonable doubt that the principal had committed murder and no less degree of homicide than murder, see Cooper v. State, 60 Tex. Cr. R. 411, 132 S. W. 355.

On the proposition that appellant or his son, either or both, had a right to protect their home under the circumstances, and as shown under the terms of the statute, see for collation of authorities Branch’s Crim. Law, § 458; Laws v. State, 26 Tex. App. 643, 10 S. W. 220; Whitten v. State, 29 Tex. App. 504, 16 S. W. 296; Newman v. State, 58 Tex. Cr. R. 443, 126 S. W. 578, 21 Ann. Cas. 718, and White’s Penal Code, art. 675, subd. 8. See, also, in reference to this matter Revised Penal Code 1911, arts. 1104 and 1105. Section 8 of that article has not been changed in the revision. Article 1104 reads as follows:

“Homicide is permitted in the necessary defense of person or property under the circumstances, and subject to the rules herein set forth.”

Section 8 of article 675, White’s Penal Code (article 1105, Rev. P. C.), applies to cases of this character in this language:

“In case of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building or at the place where the theft is committed or is within reach of gunshot from such place or building.”

Of course, it is justifiable homicide under the same statute, so far as Joe Gerard, the actual slayer, is concerned, in defense of his person. In this connection, to emphasize the fact this charge should have been given, it is conceded that deceased was in the town of West late in the evening making the threats already mentioned, and that his father lived a mile and a half from town. It is necessarily true that the deceased went to his father’s house, covering that distance of a mile and a half, and was there at the point where the tragedy occurred. This is not to be controverted, because the deceased was killed at that point. He therefore went to .this place for some purpose. The evidence also shows for the defendant that the facts stated as to chasing, him from the wineroom and subsequent matters leading to the killing already mentioned are true. It seems also not to have been controverted that in the wineroom one of the barrels of-wine had been unlocked and the wine was running from the faucet just immediately after the transaction, and there was wine in a vessel and some on the floor. The state sought to minimize this, but the fact remained that the wineroom was in this condition. It is also in evidence for the defendant that somebody had been previously coming to this wineroom and taking out wine as well as whisky. Somebody had been there the night previous or a night or two prior to this killing. The dog had chased him away, and he escaped. If the deceased went to his father’s house and entered the wineroom, it was necessarily a burglarious entry for the purpose of committing theft. This was in accord with the previous threats he had made. If Joe, the alleged principal, killed the deceased while he was in gunshot reach of the premises, he would be justified under the quoted statute, and the fact that appellant advised him to kill anybody or to “shoot after anybody” who came there under such circumstances, would not make him an accomplice to murder. There can be no question that if deceased had remained away from the premises that night this killing would not have occurred. He was there for some purpose, and over and against the interdiction of his father. If appellant advised his son to kill this boy or anybody else who came there at night committing burglary or theft or for the purpose of killing the family, or if the principal in the case believed that at the time as the evidence presented itself to his mind he had a right justifiably to shoot, his father could not be guilty as an accomplice. These matters should have been given fully in charge to the jury.

The jury should have been also specifically and affirmatively and pertinently charged that if Joe Gerard was guilty only of manslaughter, then the defendant could not be guilty as an accomplice and not negatively as was done. The statute so provides, and it could not be otherwise, because manslaughter arises from adequate cause producing sudden passion. The fact there could be an accomplice to the principal in a homicide carries with it the idea that there had been an agreement between the parties, the accomplice doing his part but not being present, the principal executing the design. This could not be so in manslaughter under the statute. Of course, if there was self-defense in the case, appellant could not be guilty. Again, if the state’s theory was right, or the court’s idea of the law correct, that the principal, Joe Gerard, killed the party, not under the protection of articles 1104 and 1105, supra, but killed him after chasing him away and under circumstances that would make him guilty of murder, then, in order to constitute appellant guilty as an accomplice, there must be something shown that he advised the killing under such circumstances that articles 1104 and 1105 would not apply. Appellant knew nothing of the actual transaction, for he was asleep; .did not hear the shots. His advice or suggestion to his son Joe was that the justice of the peace advised him he had a right to “shoot after anybody” who came to his house to rob his house or kill the people. This could not make him guilty as an accomplice if homicide occurred under those circumstances. If Joe Gerard killed deceased independent of such suggestion and of his own volition and under circumstances that did not bring him under his father’s advice or command, then appellant would not be responsible. Branch’s Orim. Law, section 242. It would be a killing upon an independent impulse of Joe Gerard about which his father had not advised. So from any possible viewpoint of this case, appellant was entitled to this charge, and he should have been accorded a full and aflirmative charge on his theory of the law under the facts.

We deem it unnecessary to take up each one of these separate charges and matters and discuss them separately. We have said enough in a general way to cover the whole matter so the court will understand that the law of justifiable homicide in defense of property, home, and life was involved in such manner it should have been given in charge to the jury.

A bill of exceptions shows that 3 or 4 years before this tragedy occurred a witness testified that deceased was in jail charged with some dereliction, and his father called at the jail to see him, and while there used vigorous denunciatory language towards the boy, and the witness also testified that the father spit in the boy’s face. The father, appellant, admitted going to the jail, but denied the remaining portion of it. However, there were objections urged to this testimony, as it was shown that after this matter, conceding that it occurred, there had been an adjustment between deceased and appellant, and that trouble had been eliminated by such friendly relations. The father had helped his son in many ways after this transaction. The writer is of opinion this testimony ought not to have been admitted, but the majority believe it admissible, but not the remarks and conduct of the witness. Where matters of this sort occur and there has been a reconciliation and it is shown that friendly relations subsequently exist and time intervenes and the killing occurred not from that matter, or from any connection with that matter, but on account of subsequent events, such prior trouble is inadmissible. There .are quite a number of cases which seem to make this a well-settled rule. We might cite, among others, Grant v. State, 42 Tex. Cr. R. 273, 58 S. W. 1026; Bryan v. State, 49 Tex. Cr. R. 201, 91 S. W. 581; Kelley v. State, 18 Tex. App. 269; McAnally v. State, 73 S. W. 405; Gilbraith v. State, 41 Tex. 567.

There is another matter occurring at the same time as testified by the witness: That when the father spit in the face of his son in jail, witness used the following language to the father:

“He (the witness) told the old man the boy might he guilty of the charge against him, but that he, Charlie Gerard, was a better man than he (J. B. Gerard) was, when he, a father would spit in his son’s face.”

The bill recites that this was told, in dramatic language before the jury, and was calculated to and apparently did materially prejudice the jury against him. Timely objection was urged. This denunciatory statement made by the witness to appellant at the time, 3 or 4 years before this trial, should not have been admitted. The witness may have been indignant, as he says he was, because the father spit in the boy’s face, but his indignation or opinion about the matter as to the conduct of the father was not permissible to be used against the father in this ease. He may have been indignant and thought it unbecoming of the father to so treat his boy, but his feelings about the matter would not be testimony, and especially so as the thing occurred 3 or 4 years before, and there had been reconciliation between the father and son. In this connection, see Barnard v. State, 45 Tex. Cr. R. 67, 73 S. W. 957; Hardin v. State, 40 Tex. Cr. R. 217, 49 S. W. 607; Funderburk v. State, 64 S. W. 1059. Many cases might be cited if deemed necessary.

There is another bill of exceptions reserved to the ruling of the court permitting W. H. Stewart, lawyer of the deceased and a member of the Waco bar, to testify to conversations, plans, suggestions, and acts occurring in the office of the witness in Waco between such witness and the deceased, Charlie Gerard, appellant not being present and knowing anything of these matters. It seems that deceased, while confined in the Waco jail on some criminal matters, had employed W. H. Stewart and Alva Bryan, attorneys, to bring suit against his father for his interest in his deceased mother’s estate, and, after being released from jail, went to the office of Mr. Stewart. Appellant and his son Joe, the alleged principal, were not present or knew nothing of it. They were at West at the time, some miles distant from Waco. A letter was then written by Mr. Stewart addressed to the defendant on May 27th. This letter was written supposedly in the interest of the deceased in regard to litigation over the estate of deceased’s dead mother. The letter is as follows:

“Waco, Texas, May 27th, 1914.
“Mr. John B. Gerard, West, Texas — Dear Father: I understand from friends who have visited me in Waco that you are just a little worried because I instituted suit against you in the courts here. I have no desire to take advantage of any one, and all I want is my part of my mother’s estate, and when I get this I shall leave the state and go into business for myself. I am willing to make a reasonable compromise with you and save you a lot of extra expense, and if you will come to Waco I will be glad to talk to you about the matter, and if settled with in the proper way I am sure we can make things more satisfactory. I have two good lawyers employed, and have given them assurance that I will go away and not bother you if treated fairly in this matter.
“Your son, Chas. Gerard.”

This letter was introduced over various objections, it being shown that appellant had never received the letter and knew nothing of it. The court approves this bill with the qualification:

“That it was the contention of defendant that Charlie Gerard went to West on the day of the killing for an unlawful purpose, to wit, to take the lives of his father and other members of the family, in pursuance of previously made threats which were introduced in evidence. It was the state’s contention that he had no such purpose in mind, but went to see his father on the peaceable mission of attempting to settle a lawsuit that he had filed against him for an alleged share of his mother’s estate.” Signed officially by the trial judge.

The contention alluded to by the judge in his qualification was part of the case, and if this letter had been brought to the attention of the defendant it might have been used in the case, because in that event he would have been apprised of its contents. But in the absence of the fact that the appellant knew; it, it certainly could not have any effect upon his mind nor upon that of the principal, Joe Gerard. Facts occurring between third parties are not admissible against a party accused of crime, however material they may be one way or the other, nor do they affect the purpose or intent of the accused, unless those facts are called to his attention. He must know of the facts before he can be held responsible for them in his action. There is no issue as to who began the difficulty in this case. Undiscovered testimony or unknown facts to the accused cannot be used against him in determining his intent. This is a very familiar rule long known and well settled. Brumley v. State, 21 Tex. App. 238, 17 S. W. 140, 57 Am. Rep. 612; Johnson v. State, 22 Tex. App. 224, 2 S. W. 609; Ball v. State, 29 Tex. App. 125, 14 S. W. 1012; Fuller v. State, 30 Tex. App. 564, 17 S. W. 1108; Gant v. State, 55 Tex. Cr. R. 291, 116 S. W. 801; Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 488; Cook v. State, 11 Tex. Cr. R. 532, 160 S. W. 465; Branch’s Crim. Law, § 477.

The state used statements of Joe Gerard as to the incidents attending the killing, which exonerated him as well as his father of guilt. The court charged generally on self-defense, but did not submit this theory of the law. This he should have done. This has been the law in Texas since the Pharr Case, 7 Tex. App. 472. This will be given proper attention on another trial, if one should occur.

In writing this opinion the different matters with reference to charges and correlated matters have not been gone into seriatim as reserved in bills of exception and presented in motion for new trial and argued in brief. But as the matters are all correlated they can be disposed of satisfactorily for a correct decision of the case in the manner we have treated them. So the court will understand upon another trial that the deficiencies in the charge must he covered. But the writer wishes to say that he does not believe the facts in this case are sufficient to show that appellant ever advised an unlawful hill-ing of his son. In regard to the above expression the majority do not agree with the writer.

The judgment is reversed, and the cause remanded.

HARPER, J.

I agree to reversal of case, but do not concur in the disposition of some of the questions.

I think the facts sufficient to authorize a finding that appellant was an accomplice, if Joe Gerard was guilty of murder. Deceased had not received any money from his mother’s estate, but only from his grandmother’s estate.

The testimony as to what appellant did and said at the jail when he visited it was admissible, in the light of appellant’s testimony.

The letter written by Mr. Stewart for deceased to his father would be admissible, if it is shown that appellant received it, and I am inclined to think the evidence sufficiently shows that fact.

While we do not think the evidence at all conclusive that deceased was stealing from his father the night he was killed, or burglarizing the premises, yet the confession of Joe, introduced in evidence by the state, raised that issue, and if the facts on another trial show, as they do on this trial, that Joe pursued, and deceased brought on the difficulty, that phase shpuld be presented. I do not care to discuss the record further, only to say that in the statement of the case appellant’s contention of the facts is stated, and the state’s theory almost entirely ignored, and if it is stated, as contended for by the state, we think it would be demonstrated that the evidence would fully support a verdict of guilt.

PRENDERGAST, P. J.

I am not now satisfied fully as to what disposition should be made of this case, but for the present am inclined to think it should be reversed.

Since writing the above, I add: I do not concur in all Judge DAVIDSON has written, but do agree with what Judge HARPER has written. I reluctantly agree to a reversal.
      <@=>F°r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    RILEY v. COLEMAN COUNTY et al.
    (No. 5546.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 15, 1915.
    On motion for Rehearing, Jan. 12, 1916.)
    1.Animáis <§=32 — Destruction of Diseased Animals.
    A county is not liable for either the willful or negligent act of its officers, unless such liability is created by statute expressly or by necessary implication, so that an allegation that the county judge unlawfully ordered the killing of plaintiff’s mules and horse without alleging that he did so under Rev. St. arts. 7161-7164, authorizing the killing of diseased animals stated no cause of action against the county.
    LEd. Note. — Eor other cases, see Animals, Cent. Dig. § 82; Dec. Dig. <®=32.]
    2. Animals <®=32 — Destruction of Diseased Animals.
    Defendant killing plaintiff’s mules and horse on an order of the judge of the county court, who believed they were affected with glanders, was not liable to plaintiff in damages, where it was not shown that proceedings prescribed by Rev. St. arts. 7161-7164, were not had, or that defendant was not a sheriff, deputy, etc., of the county.
    [Ed. Note. — Eor other cases, see Animals, Cent. Dig. § 82; Dec. Dig. <@=32.]
    3. Evidence <®=83 — Presumption—Performance of Official Duty.
    In the absence of allegation and proof to the contrary officers are presumed to do their duty.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. <@=83.]
    Appeal from Coleman County Court; I. J Rice, Special Judge.
    Action by D. L. Riley against Coleman County and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Woodward & Baker, of Coleman, for appellant. Critz & Woodward and Snodgrass, Dibrell & Snodgrass, all of Coleman, for ap-pellees.
   JENKINS, J.

This suit was instituted by appellant against Coleman county and J. A. (Buck) Stobaugh, to recover the value of two .mules and a horse, killed by said Stobaugh. Appellant alleged that “on the 4th day of March, 1914, he was in possession and the owner of two mules of the value of $250 each, and one horse of the value of $125; and that on said date F. M. Bowen, county judge of said county, acting for said county, ordered the defendant Buck Stobaugh to seize said animals and kill them, and in pursuance of said order, the said defendant Buck Stobaugh did kill said animals, to the plaintiff’s damage in the sum of $625. That at the time said animals were so killed by said Stobaugh, the said county, through its county judge, believed that said animals were affected with the disease commonly known as glanders, when in truth and in fact said animals did not have the glanders, and said killing of said animals by said Sto-baugh and under the instructions of said county judge was unlawful, and by reason of said unlawful act in the killing of said animals, this plaintiff has been damaged in the sum of $625, the same being the reasonable and fair market value of said animals at said time.

“That after the killing of said animals aforesaid, the plaintiff herein presented his claim to the commissioners’ court of Coleman county, Texas (said animals having been killed in Coleman county, Texas), for their value at the time and before they were killed, and said commissioners’ court of Coleman county rejected said claim' and refused to pay plaintiff’s said claim, to plaintiff’s damage in the sum of $625.”

The trial court sustained a general demurrer to appellant’s petition, and he having declined to amend, excepted to the ruling of the court.

Articles 7161, 7162, 7163, and 7161, Revised Statutes, provide for the killing of horses and mules affected with glanders or farcy, under the conditions named in said articles; and also for the payment of the value of such animals, if any, when claim for same has been presented to and allowed by the commissioners’ court. This procedure has been held to be constitutional as a proper exercise of the police powers of the state. Chambers v. Gilbert, 17 Tex. Civ. App. 106, 42 S. W. 630; writ of error refused 93 Tex. 726; Maynard v. Freeman, 60 S. W. 334; Livingston v. Ellis County, 36 Tex. Civ. App. 19, 68 S. W. 723. However, no issue as to the constitutionality of such proceeding is properly presented in this case, in as much as it is not alleged that the county proceeded under the statute.

The allegation is simply that the county judge unlawfully ordered Stobaugh to kill said animals. A county is not liable for either the willful or negligent acts of its officers, unless such liability is created by the statute, expressly or by necessary implication. Galveston v. Posnainsky, 62 Tex. 125-127, 50 Am. Rep. 517; Heigel v. Wichita County, 84 Tex. 393, 19 S. W. 562, 31 Am. St. Rep. 63; Railway Co. v. Moore, 98 Tex. 302, 83 S. W. 362, 4 Ann. Cas. 770. For which reason the court did not err in sustaining the demurrer, in so far as same relates to Coleman county.

As to Stobaugh, the petition alleges that he acted in the premises under the order from the county judge of Coleman county, and that at the time the animals were killed “the said county, through its county judge, believed that said animals were affected with the disease commonly known as glanders.” If the order issued by the county judge was in accordance with the proceedings prescribed by the statute, it was his duty to issue said order to the sheriff, deputy sheriff, or some constable of Coleman county, and if Stobaugh was such officer it was- his duty to obey such order, and in such event he would not be personally liable for the value of the animals killed. The appellant having alleged that such order was issued by the county judge and was obeyed by Stobaugh, in order to fix liability upon Stobaugh, we think it was incumbent upon appellant to allege, either that the proceedings prescribed by statute had not been had, or that Stobaugh was not a sheriff, deputy sheriff, or constable of Coleman county. In the absence of such allegation it is to be presumed that the county judge acted lawfully in such matter, and that it was the duty of Stobaugh to obey such order. In the absence of allegation and proof to the contrary, officers are presumed to do their duty. For the reason that the petition having specifically alleged such order by the proper official, it should have gone further and negatived the lawfulness of the order and its execution. Having failed to do so, the demurrer was properly sustained as to Stobaugh.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellant complains that as to the case against Coleman county we presumed that the county judge acted without authority, and that as to Stobaugh that he complied with the statute. It is not necessary to indulge any presumption in order to sustain our decision herein, further than that which the law presumes in favor of every man in the absence of any charge that he has done a wrongful act.

As to the county, it is not liable for any act of its county judge, unless made so by statute. In order to show liability it was incumbent on appellant to allege the facts which would make it liable under the statute.

As to Stobaugh, it is alleged that he killed appellant’s animals under an order of the county judge, who was laboring under the erroneous belief that such animals had the glanders. Was such action on the part of Stobaugh lawful? We don’t know, and the trial court could not know, without being informed whether or not the facts existed which authorized the county judge to issue such order. It was necessary for appellant to allege that these facts did not exist, in order to state a case against Stobaugh.

It is evident that if appellant had stated facts which made a case against the county, he would have shown that he had no case against Stobaugh; and, on the other hand, if he had' alleged facts constituting a case against Stobaugh, he would have negatived his cause of action against the county.

The county judge either did or did not proceed, under the statute. If he did, his acts were the acts of the county, and his order protected Stobaugh; if he did not, the county is not responsible for his acts and his order would not protect Stobaugh. The appellant should have pleaded the facts upon which he relies.

Motion overruled.
      ^=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes