In his motion for rehearing appellant insists that we were in error in holding that certain evidence was admissible on the theory that a conspiracy existed between appellant and other parties engaged in the altercation. Deceased, an officer, attempted to take a pistol from one Andrew Castleberry who resisted arrest and was killed by the officer. Brothers of the deceased Castleberry then engaged the officer in a pistol battle. Appellant entered the fight shooting the officer in the back. It appears that a short time before officers had killed a brother of appellant. When he appeared upon the scene of the present transaction, and just before firing the shot appellant said, "They killed my brother, the G___ d____ white s___ of b____s, make away with all of them, kill them all." It was necessary to develop the killing of Andrew Castleberry by deceased because it was a part of the transaction out of which the killing of the officer by appellant grew. His remark evidenced animosity not only towards the deceased officer but against other parties present acting with him. The learned trial judge in approving the bills of exception complaining of the admission of certain testimony appended the following explanation.
"* * * from the time the officer attempted to take the pistol from the negro which he killed until the time the negroes were attempting to get hold of the witness Keating, was only a short space of time. It was one continuous difficulty from the time the officer took hold of the negro killed by him until Keating left. In this row there were various numbers of negroes engaged. Statements, acts and declarations of the parties were admitted in evidence by me as part of the res gestae."
On the point of conspiracy, it may be admitted that the evidence does not show a conspiracy between appellant and the Castleberrys *Page 464 in the sense that they had previously agreed and had an understanding that the officer would be killed. What was said by Judge White in the case of Cox, et al. v. State, 8 Tex. Cr. App. 254, is so pertinent under the facts, that we quote it again. (See Miller v. State, 112 Tex.Crim. R.,15 S.W.2d 1043.) After referring to our statute defining "principals" there follows this language.
"To our minds, a great deal of the trouble, confusion, and discussion with regard to conspiracy, where two or more are charged with the commission of crime, might and can be obviated by keeping in mind these statutory provisions. If the parties can be identified at the time and place as joint participants in the commission of the crime, why the necessity of going behind that fact to establish a conspiracy to do the act already accomplished, and for which the law denounces them as principal offenders and liable to punishment as such? Why want a better predicate, or any further evidence even of a conspiracy, if their presence and guilty participation is already established? To us it seems too plain to admit of argument, that, when two or more are found acting together with unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators, — endows them as a body with the attribute of individuality, — merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders in pursuance of the agreed plan, and tending to throw light upon it or the motive or intent with which it was committed, is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted, and tried jointly or separately."
When appellant appeared upon the scene of action he at once participated in the Castleberrys' efforts to kill the officer and by his advice to kill all the "white s___ of b____" made admissible all the testimony of which he complains.
Believing our former opinion made proper disposition of the case, the motion for rehearing will be overruled.
Overruled. *Page 465