On a former day of this term the judgment herein was reversed and remanded. The State filed a motion for rehearing upon two propositions, first, that the court was in error in holding that the charge to the jury with reference to the attitude of Dock Hughes acting upon an independent impulse was not sufficient. A re-examination of the charge clearly shows the charge totally insufficient. The second proposition relied upon is that the court was in error in holding that before appellant could be convicted *Page 389 for killing Grace Kellum it ought to be shown that she came within the terms of the agreement made between the parties. Quoting State's rehearing motion, it says: "The State contends that if appellant subsequently ratified the intent of Dock Hughes he would be guilty," citing Branch's Criminal Law, section 242. The writer has never agreed, and does not believe it is correct to hold or say even that if Joe Kellum was killed when the original agreement was simply to whip him, and had he been killed by Dock Hughes, the other parties not participating in the killing, and such killing not in contemplation of their original design, that appellant would be guilty. If, however, it occurred under an original agreement or within contemplations of such agreement, such party might be held. A party to crime is governed by his own intent and connection with the act committed. The principle was recognized, however, in the original opinion by the writer that if in whipping Joe Kellum it was necessary to kill him to consummate the original design of whipping him in case he did not submit to it, that perhaps might, if the jury so found, make appellant responsible. That was stated in order to conform to what the writer believes the majority opinion held in the Serrata case. But the doctrine of ratification of crime has no place in criminal law so far as the writer is advised. That question came directly and pointedly in the case of Walker v. State, 29 Texas Crim. App., 621. Judge White, then Presiding Judge of the court, delivered that opinion, and his language is here quoted:
"In fact the evidence shows that the act was committed before he had an opportunity to aid by acts or encourage by words. Suppose that hearing the pistol and turning immediately he sees his drunken friend confronted by someone with whom he is engaged in a sudden difficulty, which has caused a shooting by the one party or the other, and under the impulse of the moment he strikes and knocks down the man who is confronting his friend. Does that make him a principal offender with Shearra, his friend, who has already fired the fatal shot which ultimately causes death to his adversary? It is contended by private counsel appearing for the State that it does, because a blow under these circumstances is a ratification and indorsement of whatsoever had been done by Shearra previously in the contest, and Shearra having done that which proves to be murder, that he indorsed and ratified the act and thereby became a principal to the murder which Shearra had already committed. We do not know of any such rule of criminal law. The doctrine of indorsement or ratification of an act already committed by another, so as to make the indorser and ratifier equally guilty with the main actor or party indorsed, is a principle and rule of conduct which we have not found laid down by any of the standard elementary authors of criminal law, and we know of no such rule having been announced in any of the decisions of the courts of last resort in this country, nor have we been cited to any authority bearing out that proposition by the learned and distinguished counsel for the State."
This is as clear a statement of the proposition as can well be made, and by one of the greatest jurists not only Texas but America has *Page 390 produced. The doctrine of ratification of crime is an unheard of principle in criminal law. The nearest approach to it under the Penal Code of Texas is the reception of stolen property after it has been stolen, or an accessory after the act. But those statutes, recognizing the principle that there can be no ratification of crime, relates back so as to make a party who is not a principal in the original transaction guilty of a different offense by participation in subsequent acts. The statutes of Texas, by their language, necessary construction and interpretation, carry out the will and purpose of the Legislature, that there can not be a ratification of a consummated crime viewed from the standpoint of guilt as a principal or original participator in the crime. So far as we know, no court and no State has gone that far or so held. Mr. Branch, in the section cited by the motion for rehearing for the State, cites the authorities very fully, and draws tersely and accurately the propositions of law bearing upon this question. First he says, "If issue is raised, it is error to refuse to charge that if another killed deceased upon an independent impulse, and not in pursuance of an agreement with defendant, the jury should acquit," citing Smith v. State, 52 Tex. Crim. 27; Faulkner v. State, 43 Tex.Crim. Rep.; Cortez v. State, 43 Tex.Crim. Rep.. Again, he states the rule: "If there is evidence that no more was contemplated than an ordinary battery on deceased, and that another, on an independent impulse, killed deceased, the court should charge affirmatively on such theory and inform the jury that if such was the purpose of defendant, and that another, besides the intent and purpose of defendant, killed deceased intentionally, that defendant would be guilty of no greater offense than assault and battery," citing Mitchell v. State, 36 Tex.Crim. Rep.; Blain v. State, 30 Texas Crim. App., 702; Harris v. State, 15 Texas Crim. App., 629. Again, he states the rule: "If no more was contemplated than a mere misdemeanor, and one of the parties, besides the intention of the other, killed deceased, those not parties to the design to kill are not guilty of murder," citing Mitchell v. State,36 Tex. Crim. 278; Blain v. State, 30 Texas Crim. App., 702; Faulkner v. State, 43 Tex.Crim. Rep.; Chapman v. State,43 Tex. Crim. 328; Renner v. State, 43 Tex.Crim. Rep.. He further lays down the proposition that it is error to fail to submit the defensive theory that defendant would not be responsible for the act of his co-defendant, if the latter exceeded the original design, and killed deceased on his own account. Goodwin v. State, 58 Tex.Crim. Rep., 126 S.W. Rep., 582; Cecil v. State, 44 Tex.Crim. Rep.; Faulkner v. State, 43 Tex.Crim. Rep.; Chapman v. State, 43 Tex. Crim. 328; Renner v. State, 43 Tex.Crim. Rep.; Mercersmith v. State, 8 Texas Crim. App., 211; Stevenson v. State, 17 Texas Crim. App., 618. Citing Turner v. State, 20 Texas Crim. App., 56, he thus states the rule: "Evidence is insufficient to show defendant guilty of murder if it only shows that defendant, with others, went to deceased's for the purpose of whipping him, should he acknowledge that he had spoken with disrespect of another, and there is no evidence that *Page 391 defendant intended anything further." Cases are also cited to support the proposition that defendant is to be judged by his own intent and not by the intent of others in a difficulty, unless he adopts and ratifies the intent of such other by aiding him by acts or encouraging him by words or gestures. Bibby v. State, 65 S.W. Rep., 193; Beckham v. State, 69 S.W. Rep., 534; Leslie v. State, 42 Tex.Crim. Rep.. These propositions and authorities might be extended indefinitely. The doctrine of ratification might be held when the party is aiding the parties as principal.
Applying it directly to this case, if these parties, appellant being one, went to the house of Joe Kellum for the purpose of whipping him, appellant not being in the room where the homicide occurred, and not knowing anything about the matter with reference to the killing of the woman in the room, he might be responsible if the killing of Joe Kellum was in scope of agreement, if Joe had been killed, but certainly he ought not to be held responsible for the killing of the woman, and the jury should have been promptly and affirmatively and clearly so informed as to the law. The evidence does not suggest that the woman was included in any design of the parties. Appellant was not in the room where the killing occurred. Two of the parties went in there for the purpose of getting Joe Kellum out to give him a whipping; that was their only design, so far as appellant knew or had heard. There is not the remotest indication by any witness they intended to kill or injure the woman. In fact, it may be said that the woman was not in contemplation, and they did not even know that she was at the house. But there is no evidence in the entire record which shows that there was any intent to whip the woman or have anything to do with her. When they went in the room Joe Kellum secreted himself, and failing to find him, Dock Hughes shot and killed the woman. Appellant was not in there, knew nothing of it, and had nothing to do with it. He was on the outside, is the only contention of the State, and they introduced circumstances to prove that conclusion, but no fact, as the writer understands this record, is shown or offered in evidence that the death of the woman or her whipping or anything in that connection was in contemplation by any of the parties, and it seems to have been an entirely independent thought by Dock Hughes after he entered the room. The jury should have been told under those circumstances plainly and unequivocally the law applicable to this phase of the law. This was not done. All sorts of objections were urged to the charge and failure to give requested instructions. The question was thoroughly fought, and it was contended by the defense that appellant could not be guilty of killing the woman unless he could be brought within the contemplation of the design to do the act performed, and it was his intent so to do. How he could be held to ratify that killing subsequent to its occurrence, when he knew nothing of the design or act until its consummation I do not comprehend. Much is said about accident and mistake in the killing of the woman. I fail to find any fact that tends to so suggest. *Page 392
Here is what Tom Hughes, the State's witness, swears, after entering the room with the deceased, Dock Hughes: "I struck the match and me and Dock went in and walked across the house. When we walked across the house, I struck the second match, and I asked the negro woman where the matches were. The negro woman was sitting on the side of the bed. She was sitting on the outside of the bed, next to the room. There was nobody else in the room, — that is, I didn't see anybody else. The match burned out, and I asked where the matches were, and she said she didn't have any matches, and I asked where the lamp was, and she said she didn't have any lamp, and about that time I struck the third match, and I saw an old lamp on the mantle. I tried to light it and there wasn't any oil in it, and the match went out and the negro shot Dock and Dock had the gun on the negro woman. When I had the match, when the negro shot him, he shot the negro wench." This is the State's witness, who saw the occurrence, and was first cousin to deceased, Dock Hughes. The question of mistake or accidental killing of the woman while shooting at Joe Kellum is not a question in the case. Tom Hughes' evidence eliminates this and leaves an intentional killing of the woman by Dock Hughes on his own sudden impulse and independent intent and entirely unknown to defendant and Davis. Dock Hughes did not shoot at Joe Kellum under these facts.
For reasons herein stated I dissented in Davis v. State, No. 3765.