In his motion for rehearing, appellant contends that the trial court should have charged on manslaughter. As we understand the record, the case was tried entirely upon the theory of principals, and that appellant was acting with his brothers throughout the transaction, he having a shotgun, and they a rifle and pistol respectively. There is no sort of claim that the brothers of appellant acted in self-defense, or that there is any evidence raising manslaughter as to either of them; nor do we think that there is any evidence seriously questioning the fact that deceased was killed by being shot by one or the other of the brothers of appellant.
Laying aside the overwhelming testimony of the State, that appellant was present during all of the shooting, and acting with his brothers — shooting into the house with his shotgun, as they fired into it with their rifle and pistol; forgetting that appellant had the only shotgun on the outside of the house on the fatal night, and that two 12-gauge shotgun shells were picked up, lying just east of the house, and others just north of it, and that the witnesses who went out and examined the premises immediately afterwards, said there were two large holes through a door in said house, that seemed to have been made by a shotgun, and that from their experience such holes could not have been made with a shotgun when fired from a distance of more than fifteen or twenty feet; — leaving this mass of testimony out of consideration, and looking at the case alone from the standpoint of the testimony of the appellant, and such testimony as is undisputed, in order to determine the issues raised, we find that he testified that he went with his brothers and father that afternoon, knowing that they were going out to get Boots Grissom, who was the deceased; that when they got within a short distance of the house, his brothers Si and George, with their arms, got out of the buggy, and walked up a ravine or slough, and that presently, and at a time when he was about 300 yards from the house, he heard the shooting, and went loping up there on a horse. He says it was dark at that time, and that when he got up there he could not see any one, and he asked what was the matter, and "somebody" shot him in the hand, arm, and side, and that he whirled; that his father had come up with the buggy, and he ran out to the buggy and got a shotgun, and put it on his knee, and shot back towards the house. He stated that he was about as far from the house when he fired as "to the back of this place," and it was agreed that this was about seventy-five feet. Asked why he shot, appellant stated that he shot to let them know he had a gun. He also said that when he got to the house, the firing was from the opposite side. He did not claim anywhere that deceased shot him, nor that he shot deceased, nor that he shot in self-defense, nor for any other purpose except as stated by him, to let them know he *Page 470 had a gun. He said he did not see any one when he shot, and did not aim at any one. His gun was loaded with number four shot. Old man Simon Grissom, father of appellant, testified as a witness for him, and said that when he got in the house after the shooting was over, he found deceased lying under a bed behind a barricade of pillows and plank. The testimony shows that deceased had been shot through the right thigh, the ball shattering the bone and going through the left leg also. It seems so incredible that a shotgun, loaded with No. 4 shot, fired at a distance of seventy-five feet from the wall of a building, could penetrate that wall and inflict such a wound upon the deceased as that which killed him, that no one could believe but that the fatal shot was fired by others than appellant, provided his story upon which manslaughter is sought to be predicated, was true. Not one of the witnesses who examined the premises after the shooting said there was a single shot hole of any character from the inside going out through the walls. Under his own testimony, and that of the other witnesses, the most that appellant could claim, would be on his part, that he was not acting as a principal with them, and was not guilty of any offense at all. Of course, under the mass of testimony offered by the State, showing that appellant was present and participating in all of the shooting, it was claimed by the State, that he was guilty as a principal; and the case was tried, and the jury instructed upon that theory. Special charges on manslaughter and suspended sentence were asked, but looking to the same, we nowhere find any statement as to when they were presented to the court, and in this condition of the record, acting upon the presumption that the trial court followed the law, we will have to uphold his action in refusing said charges, for the reason that the same came too late, if for no other reason.
Believing that the issues raised by the testimony were all comprehended within the charge on principals, and that no charge on manslaughter was demanded, and regretting our inability to agree with able counsel for appellant, the motion for rehearing is overruled.
Overruled.