The State has filed a motion for rehearing herein contending that there are sufficient facts to uphold the verdict of the jury; that the two cases cited in the original opinion, Mowery v. State, 132 Tex.Crim. R., 105 S.W.2d 239, and Taylor v. State, 77 Tex.Crim. R., 179 S.W. 113, are not in point; that in each case the deceased had already received the death blow before the accused entered into the difficulty.
In the present case, the facts relied upon came from two disinterested and sober witnesses who were drilling a well near the scene of the shooting. The witness, Guy Maddox, testified as follows:
"The next thing I saw was Henry Preece coming from around the front end of the beer joint. He went up to where this car was parked and pulled the lady out of the car. She got out and ran up north on the road toward Marble Falls. The girl did not run very far up the road. Then Preece came back and went to the other side of the car and pulled the boy out. By boy, I mean the young Hays boy. Preece kinda shook him a little. Then he turned him loose and started after the girl again. She turned *Page 73 and ran a little but further up the road. I could not estimate how far she went up the road but it was not very far. Then Preece turned around and came back and got hold of young Hays again. He had him by the shoulder and was kinda shaking him. They were on the west side of the car.
"Then I saw Mr. Hays come out of the beer joint and walk up to where these two men were. He walked up there and took a swing at Henry Preece. Then Preece hit him and knocked him down. He did not knock him all of the way down but just kinda to his knees. Then Mr. Hays got up and took another swing or two and then he went down again. Then I heard the shot. I heard two shots fired pretty close together. There wasn't anything that occurred between the two shots. They happened right close together. After the second shot I saw Preece kinda drop his hands and run around the front of the car. He came around to the east side of the car and about middle ways he fell.
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"I saw Weston Hays and his wife and Emmet Hays and the girl and Nod Terry drive up to the beer joint. Emmet Hays and the woman and Nod Terry got out and went in the beer joint. Just immediately after that I saw Henry Preece leave the beer joint. He came out to the car and pulled the woman out. The woman then ran up the road a little and Preece turned around and came back to the car and jerked Weston Hays out. He shook him a little and then took a few steps after the woman again. She ran down the road and Preece turned around and came back and shook Weston Hays again. Just about that time I saw Emmet Hays leave the beer joint and come up to where they were. When Emmet Hays got there he took a couple of swings at Henry Preece and then Preece knocked him down. Emmet Hays got up and took another swing at Henry Preece and was knocked down again. Just about that time the shooting started. All of these things happened in regular sequence just like I have described them and they took place in just about the length of time that it has taken you to ask me the question. I don't think it took any more time for them to happen than it has while I have been testifying about them."
Another witness, Clayton Shockley, who was also drilling this well, testified:
"The next thing I saw was Henry Preece come out of the beer joint and go up to the car. He went around on the west side of the car and was arguing with them. Then he either pulled *Page 74 Weston Hays out of the car or Weston Hays got out and was scuffling around there. I do not remember exactly but some way the woman got out of the car and she was standing out in front of it. I do not know whether he pulled her out or anything about that. Then Mr. Hays came out of the beer tavern and walked up to where they were scuffling. He took a swing at Henry Preece and he either shoved or knocked him down. Then Mr. Hays regained his balance and swung again and Preece either shoved or knocked him down again. Then the other boy began shooting. There were two shots and they were pretty close together. After the shots the Preece boy ran around to the other side of the car and fell. I stayed right where I was for some time after the shooting.
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"After they went in the beer tavern the next thing I saw was Henry Preece coming out of the joint. He walked up to where Weston Hays was and they engaged in some kind of a scuffle there. I saw the woman out in front of the car but I do not know how she got there. Then Emmet Hays came out of the beer joint and came up and got in the scuffle. There were two shots and then I saw Henry Preece fall. All of that happened in ordinary sequence and one thing right after the other."
Taking into consideration the fact that the deceased and appellant's son were in a fist fight when appellant swung at him and that deceased was cut three times: once in the hand, once in the leg, and once in the back, and that appellant soon thereafter said, "He said he was cutting hell out of the son of a bitch when Weston shot him", it seems that there was an acting together of both parties at the same time to take the life of Preece; and I am impressed with the fact that the testimony of the State, as set forth above, is sufficient upon which to show an acting together of appellant and his son in taking the life of Henry Preece.
I, therefore, dissent from the reversal of this cause on account of the insufficiency of the testimony. *Page 75