dissenting.
The majority denies the appellant’s motion for rehearing without written opinion. I would grant the motion and reverse the judgment because of the trial judge’s refusal to give a charge on circumstantial evidence.
On original submission, this Court held that there was direct evidence of the appellant’s participation as a criminally responsible party to the offense, and that in light of this direct evidence it was not error to refuse the charge on circumstantial evidence where the trial judge properly instructed the jury on the law of criminal responsibility. In my opinion, this Court’s opinion in Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1976) (Opinion on the Appellant’s Motion for Rehearing), is in direct conflict with our disposition of this cause on original submission.
It is well established that direct evidence is that evidence which directly demonstrates the main fact to be proved. Circumstantial evidence, on the other hand, is that evidence which directly proves a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). In Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1976) (Opinion on the Appellant’s Motion for Rehearing), this Court stated that:
“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g.Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given *368where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). See 31 Tex. Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W.2d 117 (Tex.Cr.App.1965). ”
In the present case, the main fact to be proved was that the appellant was a principal offender. There was direct evidence that: (1) the appellant hit the deceased with a beer can and a pool cue; (2) the appellant pulled a knife out of his pocket; (3) the appellant brandished a kitchen butcher knife in one hand and two pool cues in the other during the fight; (4) the appellant fought with Fagan while Tress fought with the deceased; (5) the appellant was the only person seen with a knife in his hand; (6) the appellant was not aware that Tress had a knife or a pistol; (7) Tress killed the deceased; (8) no one saw who stabbed the deceased; (9) a knife was found approximately five hours after the homicide in the car the appellant was driving; and (10) the deceased died of stab wounds.
The direct evidence is not direct evidence that the appellant stabbed the deceased or that he knew Tress would stab the deceased. The direct evidence is likewise not direct evidence that the appellant encouraged, aided, directed or attempted to aid or direct the stabbing. Rather, the direct evidence is direct evidence that the appellant and Tress were both actively engaged in a fight with the deceased and Fagan. The fight, therefore, was a secondary fact from which an inference could be drawn. This inference, which is also supported by direct evidence in the form of Tress’ testimony, is that the fatal wounds were inflicted during the fight.
Thus, the appellant’s guilt could have been proven in either one of two ways. First, if the jury chose to disbelieve Tress’ testimony, then the direct evidence yielded only an inference that the fatal wounds were inflicted during the fight. The jury would then have had to infer from this inference that the appellant was party to the offense. Second, if the jury believed that Tress inflicted the fatal wounds, then there was direct evidence that the fatal wounds were inflicted during the fight. However, the jury would have still had to infer from this fact that the appellant was a party to the offense. In either case, the only manner in which the State could have proven that the appellant was criminally responsible for the deceased’s death was by an inference. There was a total absence of direct evidence that the appellant either stabbed the deceased, that he knew Tress would stab the deceased, or that he encouraged, aided, directed or attempted to aid or direct the stabbing. None of the facts, either separately or taken together, directly prove that the appellant was guilty as a party to the offense.
Moreover, although an instruction on the law of principals was given, the necessity for an instruction on circumstantial evidence was not eliminated. Ransonette v. State, supra; McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972). Therefore, a circumstantial evidence charge should have been given. The failure to do so was reversible error.
For the foregoing reasons, I would grant the appellant’s motion for rehearing, reverse the judgment and remand the cause for a new trial.