The state's theory of this killing was that appellant and his brothers, intending to rob and murder *Page 211 deceased Grady and witness Smith, made a combined attack upon the two men — Jess Davis and Owen Davis attacking Smith, and this appellant holding a shotgun upon deceased while the other two men were taking from Smith his money; that after they had done so appellant handed the shotgun to his brother, Jess Davis, and told him to kill both deceased and Smith; that Jess Davis took the gun, and while deceased was sitting on a trunk and doing nothing, Jess Davis shot and killed him. Smith testified for the state, and said that in the struggle with Jess Davis and Owen Davis, which resulted in their finally taking from him his money, his clothing were badly torn and all the buttons pulled off his clothes, and they loosened the hair on his head and otherwise injured him. He testified that this appellant held the gun on deceased while Jess and Owen Davis were taking witness' money. That after they had gotten it away from him, Hugh Davis (appellant) handed the gun to his brother Jess and told him to kill both of them; that Jess took the gun and pointed it at deceased, who was sitting on a trunk holding his money in his hand, and that Jess then threatened to kill deceased, who told him to shoot, or words to that effect; and that Jess pulled the trigger and deceased was instantly killed, his body remaining in an upright position on the trunk, still holding his hat in one hand and his money in the other. Witnesses who saw Smith first after he left the house corroborated him as to his appearance, that all the buttons were torn from his clothing, and that his hair was loosened in his head; others swore that the body of Grady was sitting on the trunk, his hat in one hand and his money in the other, and that he was shot in the head with a shotgun. The theory of the defense was that following a game of cards and the drinking of liquor, Smith and deceased, who were losers in the game, grabbed the money, and that Jess and Owen Davis had a struggle with Smith to retake the money which he had grabbed, at the conclusion of which struggle deceased, still holding the money which he had taken, threw his hand back to his hip and threatened to kill all the Davises, whereupon Jess Davis caught up the shotgun and killed deceased in self-defense.
Appellant insists that the charge of the court was erroneous in paragraph 20. In same the jury were told that if they found from the evidence, or had a reasonable doubt thereof, that at the time of the homicide or just prior thereto deceased Grady had taken money belonging to Jess Davis, etc., and that immediately thereupon deceased made an attempt to draw a pistol from his pocket, and that Jess Davis shot and killed deceased — *Page 212 they should find this appellant not guilty. Appellant was the only eye-witness to the killing who swore for the defense. He swore as follows:
"Owen jumped up to take the money away from Smith and Jess jumped in to help him take it away from him. When Jess jumped in, Grady grabbed Jess' money and was going to get away with it. * * * He changed the money and hat into his left hand and reached for his hip and said, 'I will kill every son-of-a-bitch.' Then Jess grabbed the gun and shot him. Smith jumped out over the bed and went out of the house."
We have quoted this so that it might plainly appear that the learned trial judge, in that part of the charge complained of, was giving to the jury an affirmative charge presenting the defensive theory as made by the testimony. As we read this record, the charge followed almost literally the testimony of appellant. It is as if the court had said: If you believe Grady grabbed Jess' money and was going to get away with it — and that he changed the money to his left hand and reached for his hip, and that Jess then grabbed the gun and shot him, you will acquit. No other defensive theory appears from the testimony, and had the trial court not given an affirmative presentation of the law applicable to said testimony as given by appellant, we might have been compelled to reverse this case. The charge referred to is necessarily based on the assumption that the jury, in order to acquit on this issue, must accept as true the defense testimony raising it. There was no exception to said paragraph on the ground that same did not submit any defensive issue of self-defense against apparent danger.
The court told the jury in paragraph 24 that if they believed, or had a reasonable doubt thereof, that deceased by words or acts, or both, was doing anything which led Hugh Davis, Jess Davis or Owen Davis, or any of them, to have a reasonable expectation that the life of either of them was in danger, then Jess Davis had the right to shoot deceased, and they should acquit. So, also, paragraph 25 of the charge fully submitted the right of Jess Davis to kill, if he believed that deceased had threatened his life or to do him serious bodily injury, and that at the time of the homicide it reasonably appeared to said Jess Davis, viewed from his standpoint, that deceased by some act then done manifested an intention to execute such threat.
Complaint is made that the charge groups these defensive facts in said paragraph 20. We find no such exception to the charge for this reason, as is required in Art. 666, C. C. P. An exception to a charge that the same as a whole, or that some paragraph *Page 213 of same, is "too burdensome," could not be considered because not specific, and pointing out no error.
It is argued that the use of the word "immediately" in paragraph 20 of the charge, wherein the court told the jury that if the deceased took money of Jess Davis, etc., and that "immediately" thereupon deceased made an attempt to draw a pistol, was not proper; the contention being that, according to appellant's testimony, deceased did not make the movement to get a pistol until the conclusion of a fight between Jess Davis and witness Smith, and that it was at least thirty minutes after Grady had taken the money before he made the movement to draw a pistol. We find nothing in the record to justify any inference that the fight, if any, between Smith and Jess Davis lasted any certain limit, or that the jury could have been misled by the use of the word "immediately" in the charge. We find no exception anywhere reserved to the use of said word in that connection.
The law of principals, as applied to murder, is met when the facts show that one, without justification or extenuation, and upon malice aforethought, kills a human being, and the accused being present and knowing the unlawful purpose of the slayer, aids him by acts or encourages him by words or gestures to do such killing. Appellant is wrong in his contention that the court's charge setting forth the above principle was not sufficient, and that it should have gone further and told the jury that appellant could not be convicted under the facts in this case unless he acted upon his own malice aforethought. The cases cited, viz.: Grant v. State, 132 S.W. 352; Oates v. State, 103 S.W. 859, and Pharr v. State, 7 Tex.Crim. App. 472, have no application. There was no exception to paragraph 12 upon the ground that it did not tell the jury that the killing must have been upon malice aforethought. We look to the charge as a whole and find in other parts of same where the jury were explicitly told that the killing must have been upon malice aforethought.
We have gone over as carefully as we can each contention made, and being unable to agree with any of them, the motion for rehearing will be overruled.
Overruled. *Page 214