Appellant was convicted of murder in the second degree, and his pnnishmeut assessed at confinement in the penitentiary for a term of twenty years; hence this appeal.
The homicide grew out of a letter written by deceased for one Adams to Neighbors, sheriff of Pecos County, reflecting on appellant, appellant being at the time deputy sheriff of Pecos County under said Neighbors. *Page 545 The killing occurred at night, in the rear portion of the drugstore, in front of which was the postoffice. To a better understanding of the facts attending the homicide we refer to the following plat which was introduced in evidence.
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 546
Said building fronts south, and the postiffice is in the southwest corner near the front. The beginning of the difficulty and the place where the homicide occurred was in the northwest corner of the building. A door opened in this corner toward the west, out on the gallery. Also one opened out north. But it does not appear that this was opened during the progress of the difficulty. Near the west door and between it and the end of the counter stood an ice chest, something like four feet high. Just at the time the homicide occurred, which was about 8 o'clock at night, the mail had arrived, and was being distributed at the postoffice in the front part of the building, and a number of people were at that end of the building. Just before the difficulty deceased, Biggs, was in the front of the building and walked back toward the rear. Soon after this appellant and his companion, Bell, who was killed during the difficulty, came in and inquired for deceased, and were informed that he was there shortly before, and had gone back in the rear of the building, and probably out at the northwest door. Appellant and Bell then proceeded back that way. In a short time a pistol shot was heard by witnesses just outside said northwest door. Some witnesses on the outside and across the street, and perhaps some in the house, said that they heard a lick struck just before the shot was fired. Immediately after the shot was fired Biggs came running in at the northwest door, stating that appellant, McMahon, had struck him over the head with a pistol. Directly Bell came in, and these parties began firing at each other. It appears that after deceased (Biggs) had fired several shots, he then crouched down behind said ice chest, and some say appeared to be working his pistol. Some of the witnesses testified that Bell continued to fire, and two or three witnesses say that at this juncture McMahon came in and deceased fired at McMahon; that McMahon fired at him. When the difficulty and firing had ceased, Bell appears to have gone out at the front door and died on the front gallery near the post-office. Deceased (Biggs) came from near the ice chest, up behind the counter, between the fruit stand and the postoffice, and died. He was wounded in four or five different places, several of which were fatal. Appellant appears to have gone out at the west door and up towards the front, past Bell, who was lying on the gallery, and before Bell died had some conversation with him. Appellant himself was shot in the arm, the wound being a rather severe flesh wound. There is also some evidence of a slight wound on one of his hands, and some powder-burn. The only persons present at the time the difficulty began on the outside of the rear west door were appellant and his companion Bell, and the deceased Biggs. Appellant did not testify. The facts regarding what occurred at the inception of the difficulty are of a circumstantial character. This is a sufficient statement of the case in order to present and discuss the assignments.
Appellant assigns as error the action of the court overruling his *Page 547 motion for continuance based on the absence of R.B. Neighbors and Jim Collins, both residents of Pecos County. The diligence used for these witnesses is sufficient. Appellant expected to identify the pistol claimed by him to be the one he had during the difficulty, by the sheriff; and by Collins he expected to prove the same fact; and further that he was present when appellant's pistol was taken off of him at his home after he was carried there; and that this was the pistol which he knew belonged to appellant, and that he saw it and examined it, and it had not been discharged. In this connection the State proved by two or three witnesses that McMahon fired one or more shots at Biggs during the difficulty; and under the facts of this case this was a very material circumstance against appellant, as he claims not to have fired any shot during the entire transaction. It occurs to us that the testimony of these witnesses in rebuttal of the State's theory was material on his bis behalf, and the court should have granted the continuance.
The State introduced Mrs. Orr as a witness, and proved by her that a few days prior to the killing defendant was in her house. She there had a conversation with him in which he said, "Mrs. Orr, you are mad now, but you are not half as mad as I was last night, and if I had found the party I was looking for I expect I would be in jail now."
This testimony stands out isolated. There are no other facts showing or tending to show that it had any reference to the deceased, and as such was not admissible. Godwin v. State,38 Tex. Crim. 466; Strange v. State, 38 Tex. Crim. 280; Holley v. State, 39 Tex.Crim. Rep.. However, under the circumstances, as the State did introduce some testimony tending to show that on the night of the homicide appellant and Bell were seeking deceased to whip him, the court in admitting this testimony of Mrs. Orr evidently did so upon the idea that the threat, though no person was mentioned, must have been against deceased; this was calculated to injuriously affect him, and should not have been admitted.
We think the court was correct in admitting the testimony of the State's witness Lewis Oswald as to a conversation had between Bell and appellant, to the effect that immediately after the firing ceased, and while Bell was still alive on the gallery, appellant walked up to where he was and spoke to him; and Bell said to him, "You are the cause of my getting killed." To which appellant replied, "You ought not to have gotten into it." We do not understand appellant to contend that this was not so close to the homicide in point of time as to eliminate it as a part of the res gestae. But his contention is that the conversation was not the statement of any fact, but the mere conclusion upon the part of Bell. As stated above, this was a part of the res gestae of the homicide, and was a conversation between two of the actors on one side in regard thereto. While it may not appear to be the recitation of any fact, yet it related to the difficulty, and tends to shed light upon *Page 548 appellant's connection therewith. Its effect may be one way or the other; from it, the State might argue that appellant considered it his difficulty, and Bell had no business getting in it. On the other hand appellant might contend that Bell got into the difficulty against appellant's advice and had gotten killed by deceased Biggs. But its weight or use one way or the other does not render it inadmissible, as in our view is was admissible as a conversation between two of the participants in the difficulty, and in relation thereto, and was a part of the res gestae of said difficulty.
We also believe that the testimony of the witness Will Shafer as to what was said on the same occasion was admissible. This was part of the res gestae; and while appellant is not shown to have made any reply to what Bell then said, it evidently called for some reply; and the fact that appellant did not reply could be used against him.
Appellant complains of the refusal of the court to give his requested special instructions. One of these charges instructs the jury that unless they believe appellant entered the building where Biggs was killed after the difficulty began, to acquit him. Another instructs the jury that unless they believed beyond a reasonable doubt that appellant's pistol was fired during the difficulty to acquit him. In connection with the court's refusal to give these charges, appellant insists that the court emphasized the error by giving the jury a charge on the question of principals. We believe that the facts and circumstances of this case fully authorized the court to give a charge on the doctrine of principals. There are many acts and circumstances which it is not necessary here to reiterate, authorizing such an instruction. Nor was the court required in this connection to single out the views embraced in appellant's special requested instructions and give them to the jury.
Nor do we believe that the court committed any error in giving a charge predicated on the facts tending to show an abandonment of the difficulty on the part of deceased. This idea of abandonment was based on the proposition that deceased Biggs may have begun the difficulty; and if he did so, and then retreated in good faith, and appellant not in his necessary self-defense followed him into the drugstore and there shot him, he would be guilty of manslaughter. We understand this to be the law in such state of case. In this connection, however, the court should have further instructed the jury that, if appellant and Bell did not reasonably believe that deceased had withdrawn from the difficulty, but that by his retreating he was seeking a vantage ground to renew the attack, then appellant would have the right to follow him into the building in order to protect himself.
Appellant criticises the charge of the court on the theory that if Bell did the killing appellant would be guilty if he aided him therein by acts or words. The contention is that this view is not supported by any evidence authorizing the court to have given such a charge. We think there is abundant evidence justifying the charge. The State *Page 549 offered evidence showing threats against deceased on the part of appellant, and appellant and Bell were acting together, and that they were seeking him on that occasion. Evidently appellant was interested in shifting the homicide to the shoulders of Bell, and offered proof to the effect that Bell did the killing. However, aside from the facts that the State offered evidence showing that appellant fired one or two shots at deceased, Biggs, the circumstances are ample in this case to convict appellant of a guilty participation in the homicide, though he may not have fired any shot in the homicide, and even may not have entered the house before the homicide was committed by Bell. But we believe the court should have submitted, in connection with the theory of the killing by Bell and the participation therein by appellant, the theory insisted on by appellant, that if Bell in fact did the killing, and that during the difficulty appellant did no act in aid or encouragement of Bell, the jury should not find him guilty. Furthermore if Bell slew deceased Biggs in self-defense, appellant would not be guilty. Cecil v. State, 72 S.W. Rep., 197.
Appellant also contends that the court committed an error in submitting to the jury the doctrine of provoking a difficulty. We have repeatedly held that before a court is justified in any case in giving a charge on provoking the difficulty, there must be testimony tending to raise this issue. Provoking the difficulty is used by the State as a sword to cut off appellant's right of self-defense, and whenever a charge is given on this subject, the court should be able to point to the facts which authorized the charge. McCandless v. State, 42 Tex.Crim. Rep., and authorities there cited. Dent v. State, 79 S.W. Rep., 525; Bearden v. State, 79 S.W. Rep., 37. The record here discloses the fact that appellant bore a grudge against deceased on account of the letter about him to Sheriff Neighbors, and that he had threatened to whip him; and there is evidence tending to show that he was seeking to find him on that night. But how the difficulty occurred when the parties met at said drugstore in the dark we can only gather by circumstances. There is some testimony in the record tending to show that deceased Biggs had prepared himself to meet said parties. However, we do not recall any evidence that he was seeking them. We have no evidence of what was said by either when they met. The witnesses tell us that they heard a lick struck first, and directly a shot was fired. Circumstantially the evidence tends to show that the lick must have been struck by appellant, because deceased, as he rushed into the store, exclaimed "Bob McMahon struck me with a pistol," and after his death evidence of a lick with a pistol was found on his face and nose. So far as the record furnishes any light on the transaction, this blow with the pistol marked the inception of the difficulty, and would indicate that appelland and his companion committed the first assault and were the attacking party. To invoke the doctrine of provoking the difficulty some *Page 550 words or conduct of provocation should have been shown by the evidence as emanating from appellant and Bell, and then in resentment of this an assault by deceased Biggs. But we do not so understand the facts here. The simple question presented from this record is, who began the difficulty? If appellant and his companion made the first assault, as indicated above, the doctrine of provoking the difficulty does not apply.
It is not necessary to discuss the question raised with reference to the jury. For the errors pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, did not sit in this case.