Since the original opinion herein was handed down, exceptions properly taken to the court's charge, which were misplaced without apparent fault of the defense, have been discovered in the files of another case in his office, by the clerk of the trial court, who certifies to such fact as well as that such exceptions were duly taken and approved. These exceptions are now before us and are considered along with other matters complained of in appellant's motion for rehearing.
As we understand said exceptions, the first, second and fifth complaint is that the court below failed to tell the jury in the charge that by the expression in the law of conspiracy, as follows: "Enter into an agreement," and also that by the use of the same expression in the charge, was meant, — that the agreement must be between the defendants themselves. The language of article 1622, P. C., defining the offense of conspiracy, merely says that a conspiracy is an agreement entered into between two or more persons to commit a felony. We think, in the absence of any statement of facts in this case showing the opposite, that to follow the language of *Page 416 the statute both in the indictment and the charge in a case like this one, would be sufficient. Nothing in the record suggests that the conspiracy, if any, entered intobetween the parties accused was not between themselves, — but was in fact between others. The use of the word "between" appears to sufficiently indicate that the conspiracy charged to have been entered into, was between themselves.
We can not appraise complaints of the charge for failure to tell the jury that the threats by parties could not make out this case. We would have to have before us a statement of the facts.
If facts brought up here showed only an agreement entered into between two of the defendants, to which the others were not privy or participants, and the trial court had charged as he did in this case in which three people were on trial, that if the jury believed beyond a reasonable doubt that the defendants, or any two of them, entered into a positive agreement to kill G, the jury should find all the parties guilty, this court would reverse the case; but where no facts are before us to which we might look to see whether the agreement referred to by the court in the charge, and known to the jury from the testimony to have been entered into, was between all of the parties defendant, we must conclude that the rights of the appellant were not prejudiced by the charge given. There is no complaint either by exception to the charge, or objection to testimony, or in the motion for new trial, that as to any one of the parties there was lack of proof of his participation in the agreement referred to. We are forbidden by statute to reverse cases for errors in the charge unless there appears some possibility of injury.
The motion for rehearing will be overruled.
Overruled.