ON MOTION FOR REHEARING.
GRAVES, Judge.It is insisted by appellant in his motion that the testimony herein is not sufficient to predicate a verdict of guilt upon his part as a principal in this homicide.
The testimony does show that appellant’s brothers had engaged in one or more difficulties with the Munoz family a short time prior to this killing; that one of appellant’s brothers had been seriously injured; that there was filed in the court at San Diego certain cases against members of the Munoz family; that *82they had been allowed bond thereon and had been permitted to take these blank bonds away from the court house to obtain signatures thereon; that appellant, on the morning of the killing, had seen these members of the Munoz family on the street; that appellant and his brother, Adan, went to the courthouse, each in his separate car; that they finally inquired of an officer why the Munoz people were not in jail, whereupon they were informed that they had been given their bonds to make and would be placed under bond. This displeased appellant, and he and his brother, Adan, then left the courthouse in appellant’s car. As they were driving by a drug store in San Diego, they saw the deceased, his son (Frederico) and the old man Santiago Munoz (the grandfather) standing on or near the sidewalk. Appellant stopped his car and got out of it, and his brother, Adan, got out on the other side at about the same time, Adan, having possessed himself of appellant’s pistol which was carried in the glove compartment of appellant’s car. Appellant immediately began fighting Frederico Munoz, and Adan shot the deceased, killing him. He also shot the 78-year-old grandfather in the back. The grandfather was one-eyed and walked with a cane. Appellant was still engaged in fighting Frederico when Adan turned toward this fight and Adan “asked Willie (Guillermo) if he should kill me (Frederico Munoz). Willie did not make any reply. * * * As to what I did to prevent it, I would dodge over by Willie when he would point his pistol at me. I mean that I would keep Willie between me and him.” The pistol with which the killing was accomplished belonged to appellant, and he had kept it in his car for about a week. He testified that his brother, Adan, knew nothing about the pistol being in appellant’s car. The two brothers (appellant and Adan) made the inquiry together about the Munozes being out on bond. Appellant was displeased. He and Adan came to the courthouse in different cars but left in appellant’s car; they drove by the drug store where the Munozes were standing and parked their car, and when the two Everett brothers got out of the car and started towards the drug store, Adan had appellant’s pistol in his hand. After Adan had shot the two Munoz men, although the courthouse was within a few blocks, these two Everett brothers got in appellant’s car and drove ten miles to Alice in another county, where they surrendered to the officers.
An agreement of parties to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act. “Participation in the enterprise may be inferred by circumstances; it need not be shown by direct evidence.” 12 Tex. Jur. pp. 349-350, secs. 84-85. Any *83person who advises or agrees to the commission of an offense and who is present when it is committed is a principal, whether he aids in its commission or not. The mere fact of presence is not sufficient, however, but same is a circumstance tending to prove that a person is a principal, and taken with other facts, may be sufficient to show that he was a participant. It is not necessary that the common design be formed by all parties to kill that the doctrine of principals would apply.
In the case of Kirby v. State, 23 Tex. App. 13, the court quoted from 1 Bishop Crim. Law, 7th Ed., sec. 636, as follows:
“When, therefore, persons combine to do an unlawful thing, if the act of one proceeding according to the common plan, terminates in a criminal result, though not the particular result meant, all are liable.”
And, again, idem, page 26, we quote:
“In Mercersmith’s case, 8 Texas Court of Appeals, supra, it was said: Where two persons go out for the common purpose of robbing a third person, and one of them, in pursuit of such common purpose, kill such third person, under such circumstances as to make it murder in him who does the act, then it is murder in the other. * * * Nor is it necessary that a common guilty purpose of resisting to the death any person who should endeavor to apprehend them must have been formed when the parties went out with the common design of committing the unlawful act, to render all principals in a murder by one of them while making such resistance.”
See Rodriquez v. State, 145 Tex. Cr. R. 152, 166 S. W. (2d) 710; Scott v. State, 190 S. W. (2d) 828, 149 Tex. Cr. R. 4.
Under the circumstances here shown, it is apparent that the jury could infer that these two Everett Brothers were displeased because their prior antagonists were not in jail; that they left the courthouse in the same car, Adan’s car being left there; that they were looking for the Munozes; that they found them at the drug store; that they got out of appellant’s car for the purpose of fighting; that appellant started the fight, closely followed by his brother, who shot two of their antagonists, and Adan then asked appellant whether he wanted him to shoot a third one. This shooting was done with appellant’s pistol, evidently taken from the car and which he said his brother did not know was in the car. We think appellant was shown by the circumstances to have been a principal, and as such, he was guilty *84of whatever acts that his brother Adan did in furtherance of their common unlawful design.
The motion for a rehearing will therefore be overruled.