We have reviewed the record in the light of appellant's motion. The state witnesses made out a complete case of acting together between appellant and his brother, at the time of the shooting, and this made necessary a charge to the jury on the law of principals, — wholly regardless of whether such theory was strongly combated by the defense or not. The trial court must submit the law applicable to the issues raised by the testimony, and it then becomes the province of the jury to pass on the sufficiency vel non of the facts.
Various witnesses testified that appellant and his brother, both negroes, came together on the morning of the shooting to the Pullman car on which Herman Johnson was porter, and in which the difficulty occurred, participated in, — according to Johnson's testimony, — by both appellant and his brother. Appellant *Page 152 was positively identified as being one of two colored men who were seen by witness Lopez approaching the depot, where the car in question was located, and where the shooting took place, shortly before same. Lopez swore that he saw appellant hand the other negro a package about eight or ten inches long, wrapped in a newspaper, and heard him say, "Be sure and get him." Johnson, the injured party, swore that just before he was shot appellant "Walked out," and said "Look out there fellow, you are going to be killed, shoot the son of a bitch," and that appellant's brother shot him.
These facts justified the giving in charge to the jury of that phase of the law of principals which makes him a principal who has advised or agreed to the commission of an offense, and is present when same is committed.
We have examined all the other matters set up in appellant's motion, but are of opinion there is no necessity for discussing them. None of them call for reversal of the judgment.
The motion for rehearing will be overruled.
Overruled.