The jury assessed the death penalty for murder. This is the second appeal of this case: the first being reported in 12 Texas Ct. Rep., 921.
The questions with reference to change of venue, motion to quash venire, overruling challenge to juror Filcher, calling the case out of its regular order, and the supposed error in overruling application for continuance will not be discussed for they may not arise upon another trial, and some of them cannot so arise. The question suggested for a change of venue may not be involved upon another trial, and if so, it would become a question under the proof then offered. The absent witnesses may be before the court on another trial.
Exception was reserved to the charge of the court in regard to the law of accomplice's testimony. The charge is the same as that which this court has criticised as being erroneous, and upon which many cases have been reversed. The last one called to our attention is Barton v. State, 14 Texas Ct. Rep., 855. That case was reversed upon a similar charge and the authorities collated. See also in point Garlas v. State, 13 Texas Ct. Rep., 690; Crenshaw v. State, 12 Texas Ct. Rep., 758; Hart v. State, 11 Texas Ct. Rep., 190; Jones v. State, 72 S.W. Rep., 845; Washington v. State, 82 S.W. Rep., 653; Bell v. State,39 Tex. Crim. 679. We do not deem it necessary to discuss the question further in the face of these decisions. The charge was erroneous.
It is contended that the court erred in not charging the jury in regard to a question insisted upon as being raised by the evidence; that is, that Mrs. Aranoff (wife of deceased) and not appellant or Vann, killed her husband, and that she did it accidentlly in shooting at her husband's assailant. The theory of the State is that Vann and appellant entered the business house of deceased Aranoff for the purpose of robbery; that while there they became engaged in a difficulty with him, which ended in Vann shooting him. One of the defensive theories was that appellant did not shoot him but that his wife shot deceased in shooting at himself. Under the testimony of the former appeal, reported in 12 Texas Ct. Rep., 921, we held that it was not error to refuse to submit this issue. The evidence upon this trial bearing on this question is, from the witness Mrs. Aranoff, that the parties (appellant and Vann) came in the door on Houston street, which she called the front door. When the last shot (the one which she claims killed her husband) was fired, her husband was facing the front door. The first shot was fired by the white man and the next by the negro; and the last shot by the white man. When the last shot was fired, deceased's face was still towards the front door. When the first shot was fired, this witness left the room for her pistol, and came back after the first two shots were fired. She states that she then shot at the negro, and the negro had her husband by his *Page 41 right hand; that she shot at the negro as soon as she got through the screen door; that she was going to the assistance of her husband. At the time she fired she was standing by the left side of her husband, and the negro was in front of him, having hold of deceased's right hand with his left. She and her husband were just behind the west end of the bar, and the negro had deceased's arm drawn over the bar. This bar was about four feet high, and her husband was facing Houston street. The white man was standing over next to the grocery counter on the opposite side of the room, and to her husband's right, when he fired the shot which she says was fatal. She says, "I am positive the defendant did not shoot after I came into the room with my pistol, and neither of the shots fired before I went for my pistol struck my husband." The bureau is in the dining-room next to the window, facing Houston street. She says, that as soon as she returned with her pistol through the screen door, she tried to shoot the negro, and thought she had hit him but was so excited, missed him; that when she shot at the negro the white man shot straight at her husband's breast. "He was shot in the left breast. Holly Vann shot him." Nathan Aranoff, testified: he was sleeping on the cot in the dining-room; there was a bureau in the corner of that room at the end of his cot; that one of the shots struck the bureau, near where he was asleep. He only heard two shots; they woke him up. "I did not hear the two shots before my mother went into the bedroom." Dr. Tipton testified that he was called to the Aranoff place on the night of the killing, and found a gunshot wound in the left breast to the right of the nipple; it looked to be made with a 38-caliber ball. The ball went straight in through the apex of the heart. This was the only wound in his body; did not probe the wound, only inserted his little finger as far as he could, which was about one-quarter of an inch. The wound was so small that he could not insert his finger farther. The ball did not pass out. He further states: "I do not remember what I testified before. If I testified that the wound was to the left and above the left nipple that was right, because my memory was fresher then, than now. My memory is not clear on the wound location now. In any event, the ball went towards the center of the body. The wound looked a little large for a 32-caliber ball. It is only my opinion that it was made by a 38-caliber. A wound made several feet away is smaller than one made right at the person shot. There would be practically no difference between the size of a wound made by a 32-caliber ball at close range, and one made by a 38-caliber several feet away. It would be impossible for one standing at the grocery counter, where you say witness Holly Vann was standing, to make the wound I found on Sol Aranoff, if he was standing behind the bar, facing the door on Houston street, as you say — whether the wound was to the right or the left of the left nipple." Vann had a 38 Smith Wesson nickel-plated hammerless pistol. If the testimony is as cogent *Page 42 upon another trial as this record shows, we think the court should submit the issue as to whether Mrs. Aranoff shot her husband in shooting at the negro. If the ball from her pistol produced the death of her husband, appellant could not be convicted for murder. We think this testimony is sufficiently cogent to raise the issue for the decision of the jury. Dr. Tipton's testimony, and the position of the parties as placed by the witnesses would lend force and cogency to the theory of the defendant, that the wife and not Vann did the killing. There is no pretense that appellant did the killing. He is sought to be held by reason of the fact that he and Vann were undertaking to rob deceased, and Vann did the shooting. If the probabilities are that Mrs. Aranoff may have done the killing, appellant might be guilty of an assault with intent to rob, assault with intent to murder, but not of murder. Or he might be guilty of robbery, under the facts which are unnecessary to state bearing on that issue; but unless he or Vann did the killing he would not be guilty of murder. As before stated, if the testimony is as cogent upon another trial as this, we are of opinion that this issue should be submitted to the jury. Every issue favorable to appellant should be charged, and left for the jury to pass upon.
The other questions, as we view the record, are not necessary to be discussed.
The judgment is reversed and the cause remanded.
Reversed and remanded.