ON MOTION FOR REHEARING.
MORROW, Presiding Judge.— The prosecution grows out of the same episode as that portrayed in the case of Harris v. State, 97 S. W. (2d) 226. The evidence before the jury in the Harris case correctly sets forth the facts as related by the witnesses upon the trial, but the evidence adduced upon the appellant’s trial is not regarded such as to characterize him as a principal offender. The law of principal offender is accurately stated by Mr. Branch in his Ann. Tex. P. C., p. 345, Art. 75, in the following words:
“When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts, or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who, not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging or keeping watch are principal offenders, and may be prosecuted and convicted as such.”
Briefly stated, the evidence in the present instance is to the effect that the appellant, in company with Tom Burleson, Eron Harris and Sandy Thacker, were riding together in an automobile upon the streets of San Augustine, Texas. They parked their car on the court-house square and walked across the street to the Clark-Downs Hardware Store, where the deceased, John Gann, was standing. Upon meeting the deceased, the parties mentioned all shook hands with him. Eron Harris then struck the deceased with his fist, whereupon Tom Burleson pulled his pistol and started shooting. The deceased then ran inside the building and fell in a corner. He died without uttering a word. No weapon of any character was. found upon the body of the deceased. No witness saw him make any advance or gesture towards the appellant or his companions. A witness testified that he heard Burleson say to the deceased: “Any G— d— s— *668of a b— that jumps on any of my brothers or brother-in-law, I will kill him.”
We fail to perceive in the record any cogent fact going to show that the appellant had any grievance against the deceased or had any desire or reason to kill him. The fact that appellant was one of the four persons who were riding in an automobile immediately before the homicide may be the basis of conjecture but in the opinion of the writer it does not stand out as evidence upon which the liberty of a citizen may be curtailed. When the deceased was assaulted it was not the appellant who was the assailant but Eron Harris who was the aggressor. Appellant had no contact with the deceased save to shake his hand upon their arrival. The appellant, like many other persons, was present at the time of the homicide, but the blow upon the deceased was from the hand of Eron Harris. That appellant was one of the assailants is regarded by the writer as a mere conjecture. No relationship is shown between the appellant and Eron Harris, the person who struck the deceased, and then encouraged Burleson to shoot him. In the opinion of the writer, there is no tangible reason discernible from the record for the conviction and imprisonment of the appellant for the murder of the deceased.
Entertaining the views expressed above, the court is constrained to grant the appellant’s motion for rehearing, to set aside the affirmance and to order that the judgment be now reversed. It is so ordered.
Judgment reversed.