On a former day of this term this case was reversed and remanded, the writer of this opinion at the time agreeing to the reversal, but stating at the time he did not agree to all that was written, and would write his views later. Since then we have had occasion to study this record carefully, as well as the companion case of Harvey Davis, recently decided, and we have become convinced that the court erred in reversing the case, and, therefore, the motion for rehearing should be granted. *Page 384
In this case the evidence would show that appellant, Dock Hughes and Tom Hughes were at Preston Hughes' store in Bon Wier about 3 o'clock on Monday, August 11, 1914, in the afternoon, when Harvey Davis came along and treated them all to cider in Preston Hughes' store. That Harvey Davis then started, when Dock Hughes asked him what was his hurry, and Davis replied, "I've got to get me a negro," Dock Hughes replying, "You needn't be in such a hurry — I've got to get me one, too," That Harvey Davis and Dock Hughes then walked off to themselves and held a conversation, which was not testified to. After this conversation Davis went on off, and Dock Hughes came back in the store, and when the train came along, Dock Hughes, Tom Hughes and appellant went six miles distant, and purchased four quarts of whisky, returning to Bon Wier about 7 o'clock. These three, the two Hughes and appellant, got in a buggy, taking the whisky with them, and went to the home of Harvey Davis, who there joined the other three, and all four went down into what is called the negro settlement, first stopping near the home of June Thomas, intending to give him a whipping. They took a mosquito bar and made masks, so that the negroes would not know them. Not finding June Thomas at home, all four started toward the negro schoolhouse, where the negroes were having a school meeting. On the way to the schoolhouse two negroes were seen going towards June Thomas' house, and Tom Hughes, appellant and Harvey Davis went back to this negro's house, but again failed to find him. While they were doing this Dock Hughes went into the negro schoolhouse and fired off his gun, a negro, Word Stepney, getting hold of the gun until he could get out of the house. All the negroes were run from the schoolhouse, and when appellant, Harvey Davis and Tom Hughes returned Dock Hughes was standing by the house laughing. The party had a rifle and shotgun with them, and after they all got back both the rifle and shotgun were fired into the house, breaking out the windows. It is clear that Dock Hughes fired the rifle, but the evidence does not make it clear who fired the shotgun into the house, but places all four men there together. It appears that Dock Hughes thought he saw someone behind a tree, and called to "Walter" to go around the tree. Only one Walter is shown to be present — appellant. Finding no one behind the tree, Dock Hughes told them Word Stepney had choked him while he was in the schoolhouse, and he was going up to his house and kill him. All four went up to Word Stepney's house, apparently for this purpose, but the negro was hid in the adjoining fields and they failed to find him. They then went to the house of A. Clark, a negro preacher, and Harvey Davis and Dock Hughes went in the house and called for some liniment, the other two remaining in the buggy. Failing to get the liniment, Harvey Davis began whipping Clark, and made him get down and pray. Dock Hughes then threw Clark out of doors. The whipping was done with a mule whip. The negroes say that after Clark was thrown out someone fired into the house. Tom Hughes testifies it was Dock Hughes who shot into the house, while the negroes would *Page 385 have the shots by someone else while Harvey Davis and Dock Hughes were whipping Clark and throwing him out of the house. The negroes and Tom Hughes testify that the four men then went to the house of Mary Lewis, got Jim Parmer, and carried him off about sixty feet, and caused Jim to kneel down and pray. Another negro, Elzie McCain, came up and they made him kneel down and pray, and then whipped him and run him off. Joe Kellum, whose wife was killed that night by Dock Hughes, lived about five hundred yards from Mary Lewis' house. When they left Mary Lewis' house they went to Joe Kellum's to whip him, it being between 12 and 1 o'clock at night. The testimony of Tom Hughes shows that when they got to Kellum's, appellant, Walter Buckley, was placed at the back door to catch Joe if he undertook to escape that way. That Dock Hughes and Harvey Davis went to the front door and called Joe, Harvey Davis telling him that his horse had gotten loose and he wanted him, Joe, to help catch him. Joe told him his wife was unwell, when they told him if he did not open the door they would shoot into the house. Joe got behind the bed. The door was broken open and Dock and Tom Hughes entered the house, where the woman was killed. Tom Hughes testifies that Joe Kellum fired first, while Joe swears that Hughes fired first. The evidence will be further discussed in disposing of the questions raised.
It is contended that no witness outside of the accomplice, Tom Hughes, places appellant at the house when Grace Kellum was killed. Rev. L.C. Bowden places all four men together when they were at Preston Hughes' store. Tom Gibson places appellant, Dock and Tom Hughes together when they started to Harvey Davis' that night. Tom Hughes has appellant with them all the time, and at the place of the killing. When the men are seen that night at the various and sundry places, four white men were together, and the circumstances conclusively corroborate Tom Hughes in his testimony that appellant was present, not only at the time Grace Kellum was killed but at each and every one of the other places where they stopped, shooting into houses, whipping negroes and making them kneel and pray. Neither was it necessary for the court to define the meaning of the word "corroborate." It has a definite, well-understood meaning.
Appellant also insists that the testimony about whipping other negroes, shooting into other houses, and testimony about going up to the house of Word Stepney to kill him for choking Dock Hughes, was inadmissible, and the testimony ought to be limited down to what occurred at the house of Joe Kellum. When the testimony as a whole shows a conspiracy, each step in the conspiracy is properly admitted in testimony, and the acts and conduct of each conspirator in the execution of the common purpose and design are admissible against each of the conspirators. See Branch's Crim. Law, sec. 240, and cases cited.
Appellant insists, however, that, if the conspiracy was to whip Joe Kellum only, and Dock Hughes killed Grace Kellum upon an *Page 386 independent motive of his own, he would not be guilty. To this proposition of law we readily accede, and agree that the authorities cited by Judge Davidson in the original opinion and in the opinion on the motion for rehearing correctly so hold, and that no subsequent ratification of the murder, if he was not liable at the time of its commission as a principal, would render him liable as a principal offender. To these propositions of law, announced by Judge Davidson, we entertain no different view from that expressed by him, but the reason we concurred in the original opinion reversing the case, we were then under the impression that the court in his charge had shifted the burden of proof to defendant to show that the killing was done upon an independent motive. If the charge does do so, it would be error, and we would readily concur in the reversal of the case. But this, in our opinion, is not the correct construction to be placed on the language of the charge of the court. After correctly defining who are principals, in the commission of an offense, and telling them that the "mere fact that a person is present when an offense is committed does not constitute or make him a principal" in the commission of an offense, but that he must not only be present, he must go further and aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act in pursuance of a common design and purpose, before he would become liable as a principal offender, he instructs the jury:
"And in this case if you believe from the evidence beyond a reasonable doubt that the defendant, Walter Buckley, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence, that the defendant, Walter Buckley, did not aid, or encourage the said Dock Hughes, Harvey Davis or Tom Hughes, Jr., or either of them, to kill Joe Kellum or Grace Kellum, by any word or act or gesture, and did not know the unlawful intention, if any, of the said Dock Hughes, Harvey Davis and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead in its natural or probable consequences to the killing of Joe Kellum or Grace Kellum, or if you have a reasonable doubt about this, then you will find the defendant, Walter Buckley, not guilty."
In this he instructs the jury that, although they find appellant was present when Grace Kellum was killed, if the jury did not find that he aided and encouraged the person offending, by word, act or gesture, and if he did not know of the unlawful intention to commit an unlawful act which might lead in its natural and probable consequence to the killing of Grace Kellum, they would acquit appellant. We were under the impression at the time of the original opinion that the court did not apply the doctrine of reasonable doubt to this proposition of law, but on a more thorough examination of the record we find that he instructed the jury, in this connection, if they had a reasonable doubt *Page 387 about those propositions, they would acquit. This, to our minds, did not shift the burden to defendant, but gave him the benefit of the reasonable doubt on that affirmative defense as well as all other propositions of law submitted in the charge. And we think it was a sufficient presentation of killing upon an independent motive, for he tells the jury that, although appellant was present at the time Grace was killed, yet, if they had a reasonable doubt as to whether he knew of the intent to commit an unlawful act that might lead to her being killed, or, if present, he did not aid or encourage the person offending, he would be guilty of no offense. As said by Mr. Branch, in section 242 of his Criminal Law: "Each conspirator is responsible for everything done by his confederate which follows immediately in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as a part of the original design." (Mitchell v. State, 36 Tex. Crim. 278; Bowers v. State, 24 Texas Crim. App., 542; Henry v. State, 54 S.W. Rep., 592.) How peculiarly applicable to the facts in this case is the rule laid down in 2 Bush, Crim. Law, sec. 692: "If several conspire to invade a man's household and go to it armed with deadly weapons, to attack and beat him, whereupon one gets into a difficulty with him and kills him, the rest are guilty also of murder, though they did not mean it."
There is, nor can there be, a question in this record that the parties conspired to go to the home of Joe Kellum and whip and beat him with a mule whip. The whip was found on the gallery. They break into his house, carrying guns with them, and in the difficulty following Grace Kellum is killed.
The next contention is that the court erred in instructing the jury, that, if Grace Kellum was killed by mistake or accident, when it was the intention to kill Joe Kellum, etc., the jury would find him guilty, it being insisted that there is no evidence to raise the issue that the shot was fired to kill Joe Kellum and by mistake killed Grace Kellum. If there was no evidence to raise such an issue, we would agree that such a charge should not have been given, but from a careful perusal of the record, we arrive at the same conclusion as did the trial judge. The record as a whole discloses they went to this house to whip Joe Kellum; that they broke into the house to get him for that purpose. Grace said nothing to anger them; Joe was hid behind the bed. It is true, Joe says that Hughes fired first; but Tom Hughes says that Joe Kellum fired first, and in this he is supported by the negroes who heard the shots. Hughes shot with a rifle. Joe Kellum used a shotgun. On cross-examination of the State's witnesses, appellant was diligent in proving by them that the shotgun was first fired, and then the rifle. Sheriff Howard testified he went to the scene of the homicide, and examined the premises; that the blood where Dock Hughes fell was between the door and fireplace; that he noticed some bullet holes in the wall — in the corner near the bedstead, where lay Grace Kellum's body; that the body of Grace Kellum was on a line from the bloody spot on the floor where Hughes fell and the holes in the wall near the *Page 388 corner of the bedstead; that these bullet holes were about twenty-eight inches from the floor. If Joe Kellum fired first, as the testimony of Tom Hughes and the negroes who heard the shots indicates, the evidence raises the issue that Dock Hughes shot at the person who fired the shotgun and all the testimony shows that it was Joe Kellum who fired the shotgun, from his position behind the bed. And, if Dock Hughes shot at Joe Kellum and killed Grace Kellum, in the darkness firing at the flash of the gun, our statute provides (art. 48) if one intending to commit a felony and through mistake or accident, does another act which, if voluntarily done, would be a felony, he shall receive the punishment fixed by law to the offense actually committed. The question of when one person shoots at another, and kills a third person, has been frequently before the court, and it has always been held by this court that the accidental killing of a third party, in an attempt to slay another, is murder upon implied malice. (Breedlove v. State, 26 Texas Crim. App., 445; Musick v. State, 21 Texas Crim. App., 69; McConnell v. State, 13 Texas Crim. App., 390; McCoy v. State, 25 Tex. 33; Angell v. State,36 Tex. 542; Thomas v. State, 53 Tex.Crim. Rep..) The evidence, in our opinion, clearly raises the issue that Grace Kellum was killed accidentally by a shot fired with the intention to kill Joe Kellum, under circumstances in which it would have been murder had Joe Kellum been killed.
The question of "ratification" discussed by Judge Davidson in the opinion on the motion for rehearing is not in the case, was not submitted by the court in his charge, and there is no evidence raising such an issue. The evidence would all tend to show that these four men conspired to go to the negro quarters and whip negroes; that it might become necessary to kill some of them in so doing was their opinion is manifested by their arming themselves with deadly weapons; that in furtherance and in pursuance of the common design a woman was killed, and it grew directly out of the conspiracy entered into by all four of the parties.
The other questions are fully discussed and authorities cited in the companion case of Harvey Davis v. State, in which the motion for rehearing is this day overruled.
Motion for rehearing granted, and the judgment of the trial court is affirmed.
Affirmed.
January 19, 1916.