Appellant was convicted of murder, his punishment being assessed at fifteen years confinement in the penitentiary.
The theory of the State was that the parties, defendant and his brother Emmett, were at the blacksmith shop, which seems to have been the property of one or both of them, and the deceased, in a wagon with his wife and children and a girl who was not his child, drove by, where they were. The defendant's theory was that there had been *Page 326 trouble between the defendant and the deceased growing out of a matter of tenancy, and that on this particular morning they were there for the purpose of serving written notice on deceased to vacate the premises he was occupying, and that as they approached the deceased he fired and they returned the fire, killing the deceased and wounding his wife and all of his children. They further contend that the wounding of others than the deceased was accidental or not intentional. That they were all in range and in a wagon and that the shot scattered and struck them. The theory of the State was that the appellants went to the shop armed for the purpose of killing the deceased, and when he passed they executed their purpose. The testimony is voluminous, but this is a sufficient statement so far as is thought necessary to write.
The court submitted murder, manslaughter and self-defense, the latter being from two standpoints: First, in defense of himself against the deceased, and, second, that the part he took in the tragedy or difficulty was in defense of his brother. Also it may be stated it is claimed that his brother did the killing in defense of appellant. These matters are all in the record in one form or another. The court submitted the question, we think, in appropriate language, and in such terms as the law requires. He also submitted the law of principals, that is, if they were acting together, etc., in pursuance of a common design and purpose and did the killing, it would be murder or manslaughter, as the jury might find from the facts, and subsequent charges in regard to manslaughter. The law of threats was also given in charge. There were no exceptions taken to the court's charge at the time it was read to the jury, the only exception being found in the motion for new trial. The appellant asked one charge, which was given, submitting the issue of assault to murder. He also asked a charge with reference to conspiracy, which the court refused. We are of opinion that there was no error in refusing a charge on conspiracy in view of the charge given by the court on principals. There may be cases where the law of conspiracy ought also to be given in addition to the law of principals, or where it would be better to charge on conspiracy and not on the law of principals. But under the facts of this case it occurs to us the court was right in charging on the law of principals under the peculiar facts, and having done so was not in error in refusing the charge on conspiracy. As before stated, the erroneous rulings in regard to the charge were only mentioned for the first time in the motion for new trial, and they not being of a fundamental nature, under our late statute will not be the subject of revision. But take the charge as a whole, we believe the court submitted the law correctly and did not err in refusing the special requested instructions.
The judgment, therefore, will be affirmed.
Affirmed. *Page 327
ON REHEARING. December 22, 1915.