Appellant complains in his motion of the refusal of a requested charge, in effect, that "the bare presence of the defendant Jennings, at the time of the commission of the offense, if any, would not render him guilty with the real perpetrator, if any, of the offense." There is no testimony in this record that appellant was a mere spectator, or that all he did was to be present. The state's testimony made him an active participant, and, according to his own testimony, he shot two or more times at deceased in the course of the difficulty. Nor is there anything in the record supporting any theory that appellant's only connection with the offense was a failure on his part to give alarm, and that a special charge asked should have been given, in effect, that his failure to give alarm would not of itself render him guilty. There were a number of people present when the shooting took place. The "alarm" was sounded when the pistol was fired. The fact that later and before the grand jury appellant made a written statement which was repudiated by him when a witness on this trial, — in which he made false statements as to the acts of his companion in connection with the shooting, would not furnish any basis for the giving of either of the special charges.
We have again considered the bill of exception complaining of the introduction of certain orders of the commissioner's court, in matters not apparently affecting any issue in this case, as held by us in the original opinion. We feel sure there must have been in the mind of the trial court some belief of the relevance of these matters, but again confess our inability to perceive same. However, we also adhere to our former statement that we can not see how, to any extent or in any degree, said matters could have harmed appellant.
The facts seem to show an ugly murder, and to the zeal and ability of counsel appointed to represent appellant may be credited the fact that his punishment was not a heavier penalty. The original brief as well as that on motion for rehearing, lead us to express our appreciation of the earnest and able defense conducted without pay, but simply in the discharge of a duty imposed by appointment.
The motion for rehearing will be overruled.
Overruled. *Page 392