Conviction for murder; punishment, sixteen years in the penitentiary.
This is the second appeal of this case. See Jefferson v. State, 110 Tex.Crim. Rep..
On the night of August 26, 1926, two negroes were killed. One of them was shot with a shot gun, the other with a rifle. The killing occurred about midnight after the close of a box supper. The testimony for the State shows that about the time of the breaking up of said box supper appellant and his brother left the place and went toward their homes something like a mile distant and a short distance from each other. Witnesses who were at the home of appellant's brother testified that appellant came there, having a gun in his hand and looking for some shells. One of the witnesses said he saw appellant take two or three shells from a dresser drawer. The gun he had was a shot gun. About this time appellant's brother, Brysie, called him to come on, and according to the witness appellant "tore out" down to where his brother was. Witnesses saw the two men, accompanied by another named Busby, presently going *Page 491 back toward the place where the box supper was had. They said Brysie had a gun and it looked as though appellant had one. A witness who was at the place where the box supper was had testified that she expected to go home with deceased in this case and told him that she was going down the road a little way. She walked along the road and a short distance from the place met appellant and his brother. In a few moments she heard two shots, and then other shots from a different sounding gun. The bodies of the two men were found some distance apart. Witnesses testified to seeing appellant and his brother going back toward their homes after the shooting and that each had a gun. The testimony is sufficient to support the jury's conclusion that appellant killed Livingston who was shot with a shot gun.
The court gave the jury the customary charge on principals. Various exceptions were reserved to this charge, but we do not think them of any merit. The fact that no one heard appellant use encouraging words to his brother, would seem of no weight under the facts of this case. The two men appeared, under the testimony, to have left the scene of the difficulty and gone to their homes and gotten guns and walked together back down to the scene of the shooting, one with a shot gun and the other with a rifle. Both were present when the shooting took place, and both went away together.
There is complaint of the charge of the court for failure to instruct the jury if they found appellant to be an accomplice only to the killing, they could not convict him of being a principal. We think such charge not called for. The killing occurred near a church, and a short distance from same toward the home of appellant was a bridge. Bertha Williams said on her way from the church to the bridge she met appellant and his brother, and that appellant was carrying a gun; that a short distance further up the road she met Brysie and that he was carrying a gun also. She had gone twelve or fourteen steps beyond the bridge when she heard the guns fire. This so pertinently supports the proposition of the personal presence and active participation of appellant as to entirely negative the proposition of his being only an accomplice. The complaints of the charge are lengthy and numerous, but when the charge is taken as a whole it seems to be an admirable presentation of the law applicable to the facts.
There are a number of bills of exception to things transpiring during the trial, each of which has been examined. By various bills complaint is made of the refusal of the court to permit witnesses Carter, Busby and Williford to testify to statements made to them *Page 492 by Brysie Jefferson after the shooting and not so near thereto as to be a part of the res gestae, to the effect that Brysie Jefferson said to these witnesses that he did all the shooting. Brysie Jefferson and appellant were both indicted for this offense. Brysie had not been tried or acquitted, or his case dismissed. There was no error in the action of the court. Walsh v. State, 85 Tex.Crim. Rep..
Complaint is made in bill of exceptions 6 of a statement made by the brother of appellant when the two men came back up the road from the scene of the shooting, to the effect that the witness testifying to this statement had better go down and pick up his cousin, his cousin being Moffett, one of the two men who was killed, Moffett being killed by a rifle shot. We see no possible harm that could come to appellant from the admission of this testimony. We are of opinion that in the development of this case it was necessary for the State to show that Moffett was killed, and where his body was found relative to that of the deceased in this case, Livingston. The two men appear to have been killed by appellant and his brother acting together.
We see no error in action of the court overruling the motion for new trial on ground of newly discovered evidence. No diligence was shown in regard to the alleged newly discovered testimony, and the refusal of a new trial was within the discretion of the court below.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.