Appellant bases his motion for rehearing on a number of contentions, all of which have been examined, but none of which in our opinion can be sustained, and only two of which will be discussed. First, it is urged that no evidence authorized the court to submit the issue of appellant acting as principal with Brysie Jefferson by aiding or encouraging him by "words or gestures"; second, that the evidence raised the issue of appellant being an accomplice in the murder, and that the court erred in not explaining who would be an accomplice, and in failing to tell the jury if appellant was an accomplice he could not be convicted under an indictment charging him as a principal only. Both of these contentions turn upon the evidence and we have been at some pains to try to analyze it as best we may. The court did make appellant's guilt in any event depend upon his presence at the scene of the killing, either by himself killing Livingston, or in being present and *Page 493 acting with Brysie Jefferson in killing deceased. After properly defining principals the court twice in his charge told the jury if they had a reasonable doubt as to whether appellant was present and acted as a principal in killing Livingston they should acquit. Under the facts these instructions in our judgment sufficiently protected appellant without enlarging on the subject.
The killing occurred near a negro church. About one hundred fifty yards west of this church was a bridge. Livingston's body was found near the church evidently within a few feet of where he was standing when shot with a shot-gun; Moffett's body was one hundred fifteen yards from that of Livingston, and near the bridge mentioned. Moffett had been shot three times with a rifle. Empty rifle shells and wadding from the shot gun shells found near together would indicate that all the firing was done near the same point. Moffett's body being found some distance away is explained by evidence that he got on his horse which ran towards the bridge, Moffet falling off before the bridge was reached. The evidence seems to establish that Brysie Jefferson and appellant left the church together and went to their homes, where Brysie secured a rifle and appellant a shot gun, and both returned to the church. One witness who was near the bridge saw each of them with a gun pass that point going toward the church immediately before the shooting, and other witnesses saw them going toward home immediately after the shooting each of them still having a gun. One witness testified that after the shooting he met the two Jeffersons, some ten or fifteen steps from the bridge and between it and the church, they going from the church, each of them having a gun. One witness for appellant testified that he left a point near the church almost immediately before the killing and started toward the bridge, and after going some ten or fifteen steps he met Brysie Jefferson coming toward the church, but did "not see appellant anywhere." Another witness for appellant, — which witness had at one time been under indictment for this killing — testified that he saw Brysie Jefferson do all the shooting; that he shot twice with the shot gun, then picked up the rifle and shot three times with it; this witness said he did not see appellant; neither did he see Brysie until the shooting started. Under all the facts and circumstances in evidence it would not have been surprising had the jury entirely ignored the testimony of this witness; but giving his evidence full effect we think it only shows that he did not see appellant at the scene of the killing.
The case was recognized as one of circumstantial evidence against appellant and the jury was instructed upon that subject. It is not *Page 494 our understanding of the law that the issue of whether appellant aided or encouraged Brysie Jefferson by words or gestures must be raised by direct evidence of some witness who claims to have seen him make some gesture, or heard him say some word, but that this issue the same as any other, may be raised by proof of circumstances. It would not be practicable to set out more in detail than has already been done the evidence which authorized the learned trial judge to submit this phase of principals. If the state's evidence be believed appellant was acting with his brother Brysie Jefferson, in procuring arms with which the killing was accomplished, and accompanied him to the spot carrying one of the guns, — presumably the shot gun — and left after the killing still carrying one of the guns. The jury could well have based their verdict upon a finding that appellant himself fired the fatal shot which killed Livington; or upon a finding that appellant was present when Brysie Jefferson killed deceased, having previously agreed thereto; or upon a finding that appellant was present and encouraged by words, or aided by acts, Brysie Jefferson in doing the killing, knowing his unlawful intent to do so.
The record is confusing as to the facts but our best judgment leads us to the conclusion that appellant's motion for rehearing should be overruled and it is so ordered.
Overruled.