The transcript herein has been corrected to show that the exceptions taken to the court's charge were properly presented and approved by the trial court, and we now consider same.
Appellant excepted to paragraph thirteen of the court's charge, which is as follows: "You are further instructed that you cannot consider the acts and declarations, if any, by Buster Whitely and Pat Henderson, or either of them, made in the absence of this defendant, for the purpose of proving a conspiracy; but you must find from the evidence, beyond a reasonable doubt, independent of the acts and declarations of the said Buster Whitely and Pat Henderson, or either of them, if any were made in the absence of the defendant, Buell McNeese, that a conspiracy was formed, before you would be permitted to consider said acts and declarations, if any, for any purpose whatsoever."
This paragraph does not present a strictly correct statement of the law, but the error is against the state, and affords appellant no ground for complaint. Acts and declarations of parties claimed to be principal offenders, made in pursuance of the common design, and prior to the consummation of such design, whether made or done in the presence of the other parties to the crime or not, are admissible against any or all of said parties. There may be, as frequently appears, exceptional cases to which the rule would not apply, but the instant case is not one of them. We see no reason for complaint, on the part of appellant, of the charge for instructing the jury they could not consider the evidence of Whitely and Henderson, two men who seem to have acted with appellant throughout in this case.
The holding in the opinion of Henderson v. State,120 Tex. Crim. 361, 48 S.W.2d 271, a companion case to that herein involved, which has already been decided by this court, — that it was error to refuse a charge on circumstantial evidence, could have no application in this case. The appellant shot deceased, — Henderson did not; hence the difference.
We think the case properly disposed of in our original opinion, and the motion for rehearing will be overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.