on appellant’s motion for rehearing
WOODLEY, Judge.The principal complaint raised in appellant’s motion for rehearing relates to our disposition of his Bill of Exception No. 1. We disposed of this bill relating to the charge on the law of principals, upon the theory that the charge in fact required the jury to find that appellant himself fired the fatal shot.
In the Garver case, cited in support of our holding, there was evidence to sustain a finding that the defendant broke and entered the building, and also testimony from which the jury could have found that he kept watch while his companion made the entry. We held, under these facts, that Garver was in no position to complain that the jury was not so charged as to authorize his conviction under the latter theory as well as upon a finding that he personally committed the burglarious act.
Appellant points out that the rule we invoke could have no application here for the reason that there is no evidence to support a finding by the jury that appellant shot and killed the de*226ceased, and that the only theory upon which the state could have relied was that he acted as a principal with Moody Puckett, who admittedly killed the deceased.
A re-examination of the record convinces us that appellant, is correct in his contention.
No witness identified appellant as the person who fired the shot or as one of the two men present at the time of the shooting. All of the evidence points to Moody Puckett as the person who fired the shot.
Harvey Holland, a passenger in the deceased’s car, testified that he talked “to the guy who shot him” and heard him say that “he shot the wrong guy”; that he had never seen appellant so far as he knew before the trial; that he saw one of the two men that were in the other car drive off, but the fellow he was talking to remained there. Also Holland identified a picture, which was shown to be that of Moody Puckett, as the person he was talking to and who said he killed the deceased and had “shot the wrong guy” and remained at the scene. He also testified that the same man asked the deceased “Why in the hell he didn’t stop,” and that he had a pistol in his belt after the shooting.
When appellant returned to the service station, he reported that the Negro was out there dead and that Moody had killed him.
When Deputy Sheriff Fields arrived, Moody Puckett was sitting near the body of the deceased with a .38 caliber pistol in his lap. This officer testified that Puckett said he had done the shooting.
There is ample evidence upon which the jury might have found that appellant acted as a principal with Moody Puckett in the killing. They were in the service station together. It was appellant who suggested “We’ll go get him.” Appellant was the owner of the pistol and of the car, and drove it in pursuit of the Negroes who had cursed the service station attendant.
The circumstances are sufficient to support a finding that he was present and was acting with Moody Puckett, but the question of whether he was present and knew that Puckett intended to kill the Negro, advised or encouraged Puckett in the murder, was not submitted to the jury.
*227The court’s charge contained an abstract definition of the law of principals, but in no manner applied the same to the facts.
The jury was authorized by the charge to convict appellant upon a finding that he committed the murder, but the evidence is not such as would sustain such a finding.
The jury was not instructed to the effect that if Moody Puckett voluntarily killed the deceased and appellant acted with him as a principal, in one or more of the ways stated in the definition of that term, he should be convicted.
The trial court should have made application of the law of principals to the facts, the jury, under the facts here, not being warranted in convicting him unless they found that knowing Puckett’s unlawful intent, he agreed to or aided or encouraged him in the commission of the offense.
And in connection with such submission, it was incumbent upon the court to charge the converse.
The following authorities cited by appellant support these conclusions: Crisp v. State, 125 Texas Cr. Rep. 603, 69 S.W. 2d 772; Barnes v. State, 145 Texas Cr. Rep. 131, 166 S.W. 2d 708; Branch’s Ann. P.C., p. 346, Sec. 678.
The error in the charge requires that the conviction be set aside.
Appellant’s motion for rehearing is granted, the order of affirmance set aside and the judgment is now reversed and the cause remanded.