Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
This is a companion case to that of Faulkner v. State, ante, *page 311.
In bill of exceptions number 7, appellant complains of the following portion of the court's charge: "If you believe from the evidence beyond a reasonable doubt that in Dallas County, Texas, on or about December 3, 1900, the defendant, either alone or as a principal with others, did steal or was present at the stealing of money and shoes, or either, from the person of C.P. Bane, and did pour turpentine or other inflammable liquid upon his person, or was present when turpentine or other inflammable liquid was poured upon him, and did ignite with a match said fluid or liquids, or was present when the same was done by others; and that he (defendant) did then and there know of such theft, turpentining and setting on fire of said C.P. Bane, and was the owner or one of the owners of the place in which said act occurred, then he (defendant) would be guilty, as a principal, of murder by torture, in the first degree, and you should so find, and frame your verdict as above directed." Appellant's objections are: (1) Because the language used is upon the weight of evidence; (2) because the issue of murder by torture is not raised by the evidence; (3) and, if raised, should have been submitted to the jury as a question to be determined by them from all the evidence in the base; (4) because in applying the law to the facts the court permits the jury to convict defendant as a principal if they believe beyond a reasonable doubt that he was present and knew that the offense was about to be committed, and was the owner, or one of the owners, of the place in which said act occurred, and that regardless of whether or not defendant was acting together with others who actually committed the offense. In other words, the court makes the mere knowledge that an offense is being committed, or about to be committed, together with defendant's presence and ownership, or part ownership, of the place where the offense occurred, sufficient to constitute defendant a principal in the commission of the offense. We think the issue of murder by torture is raised by the evidence, and the definition of torture as contained in the court's charge is correct. Nor do we think the court assumes in the charge that if death result, the killing would be murder by torture, for the court had told the jury what was murder by torture, and then tells the jury if defendant did pour turpentine or other inflammable fluid upon his person, etc., and deceased was burned up, it would be murder by torture. The vice in this charge is embodied in the last contention of appellant. The mere fact that appellant may have been owner or part owner of the saloon where the burning occurred would not make him guilty of the murder, and such *Page 335 should not have been embodied in the charge. The most that such circumstances could be used for would be as tending to show guilt. Certainly the fact that appellant owned the house would not per se establish that he was particeps criminis to murder committed in said house. It might be used by the jury as a circumstance in passing upon the question as to whether appellant co-operated, consented, and conspired with the other persons in the commission of the crime; but, being a mere circumstance, it would not require a charge by the court thereon. We think the charge of the court is erroneous, as contended by appellant, for it makes the bare presence and knowledge on his part that an offense was about to be committed, and that he was the owner or part owner of the place, proof positive of the fact that he was acting together with others in the commission of the offense. Certainly the presence of a person at the place where the crime is committed is a prerequisite for the conviction of such party as a principal. Knowledge on the part of the person that the crime is being committed is also a prerequisite to his guilt. But neither of said facts would necessarily establish appellant as a principal to the crime with which he was charged. The court should have instructed the jury, after defining principals as laid down by the statute, that, if defendant was present, knowing the unlawful intent of the other parties, naming them, and that he adopted said intent, and while present he aided by acts or encouraged by words or gestures and consented to the commission of the crime, then, in that event, he would be guilty as a principal. It is not necessary that the principal should do some act at the time, aside from being present, in order to constitute him a principal, but he must encourage by acts or gestures, either before, or at the time of the commission of the offense, with full knowledge of the intent of the parties who commit the offense, otherwise he can not be convicted as a principal.
By bill of exceptions number 8 appellant complains of the following portion of the charge: "If you believe from the evidence, beyond a reasonable doubt, that in Dallas County, Texas, on or before December 3, 1900, that any person or persons bought turpentine or other inflammable liquid, and carried it into the saloon of Chapman Faulkner, and that said turpentine or other such fluid was poured upon the body of said C.P. Bane by any person or persons, and that said turpentine or other inflammable fluid was set on fire by an ignited match by any person or persons, and that defendant was present in said saloon, and knew said turpentine or other inflammable fluid was poured or being poured or placed upon said Bane by any person or persons, and said match ignited, and fired said turpentine or other inflammable fluid by any person or persons, and that such act of setting afire said turpentine or other inflammable fluid by any person or persons might probably result in the death of said Bane, and that said defendant then and there reasonably knew that such act might so result, and that defendant was then and there the owner or one of the owners of said saloon, and that said burning of said Bane occurred in said saloon, and caused the *Page 336 death of said Bane, then, in that event, defendant would be guilty, as a principal, of murder in the first degree, by torture, whether he participated in the said act or not, and whether it was intended to kill the said Bane or not, or whether the said Bane had been robbed or not; and, without reference to what the unlawful intent of setting the said Bane on fire may have been, you should so find and frame your verdict as above directed." This charge is clearly erroneous. The fact that appellant should have consented to the pouring of turpentine upon the person of deceased would not per se make him guilty of murder. In all prosecution for crime under our law the gist of every offense is the intent of the defendant. If defendant poured fluids upon the person of deceased without any thought or expectation that some one else would ignite the turpentine, and thereby cause the death of deceased, he would not be guilty of any grade of offense higher than a misdemeanor. In order to make appellant guilty he must adopt the intent of that party and the proof must satisfy the jury beyond a reasonable doubt that Chapman, while present and knowing the unlawful intent of the other parties, assisted them not only in pouring turpentine, but in all other criminal acts leading up to the destruction of the life of deceased, and adopted said acts as his own. The conclusion of the above clause: "Then, and in that event, defendant would be guilty, as a principal, of murder in the first degree, by torture, whether he participated in said act or not, and whether the said Bane had been robbed or not, and without reference to what the unlawful intent of setting the said Bane on fire may have been." This is clearly contradictory of the law of principals as given by the court in the first part of the charge. Certainly, if appellant did not participate in the crime, he would not be guilty; and if he did not intend to kill deceased he would not be guilty. But if appellant, either alone or acting with others, placed turpentine upon deceased, which turpentine was by appellant or the others with whom he was acting set on fire, and appellant reasonably expected that death would ensue from said act, and, so believing, set fire to the said Bane, then appellant and those who participated with him in the commission of the offense would be guilty as charged by the court, of murder in the first degree. But, if he poured turpentine upon the person of deceased without such intent, he would not be guilty, and the court should have so charged. Furthermore, the court should have told the jury that the fact defendant poured turpentine upon the person of deceased, and was present when some one else set fire to deceased, and did not adopt the intent and agree to the unlawful act, either by words or action, appellant's presence and the fact that he poured turpentine alone would not constitute him guilty of murder. We have repeatedly held that presence and knowledge that an offense is about to be committed or is being committed would not per se render such person guilty as a principal to the commission of the offense, but there must be some consent and cooperation of some character on the part of the person present in the commission of the offense, before he would be guilty of any offense. *Page 337 These principles of law should have been applied by the court to this phase of the case.
In his motion for new trial appellant insists that the evidence called for a charge on murder in the second degree and negligent homicide. We do not think so. The evidence does not raise any degree of murder except murder of the first degree.
Bill number 13 complains that while P.J. Donovan was on the stand and being cross-examined by counsel for the State the witness testified that a man, who, in the best judgment of witness, was the defendant John Chapman, rushed in through the front door of the saloon, and seized the burning man, and threw him to the floor, and tried to extinguish the fire. State's counsel asked the witness if defendant had his hands in the flames, to which the witness answered that he did. Defendant at this time was seated between his own and State's counsel. And when the witness so testified the State's counsel turned and seized one of defendant's hands, and jerked it up violently in the presence of the jury, and before defendant could prevent it, and where the jury could see it, and said to witness, "Look at this hand and tell the jury whether or not you see any burns or scars on it now." Defendant's counsel objected to such unlawful conduct on the part of State's counsel, and State's counsel stated to the court, in the presence and hearing of the jury: "Yes, sir; I offer the defendant's hands in evidence before this jury. I have a right to do it." We do not think this character of procedure should be indulged or permitted. If defendant did not have scars on his hands, this fact could have been proved without him "being jerked up violently in the presence of the jury."
Bill of exceptions number 14 presents the following: "Dr. McFerrin, assistant city physician, was permitted to testify, over appellant's objections, that receiving a call at the city hospital between 12 and 1 o'clock, they went to the saloon where the burning occurred, which was about a mile and a half from the city hospital, and reached the saloon in about twenty-five minutes. We examined the deceased and dressed his wounds at the saloon. He was burned all over from his knees up. He was so badly burned that his body was hard and crisp, and parts of his body were brittle, and the burned flesh could be knocked off with the fingers. He was placed in the ambulance, and carried to the hospital. He suffered intensely, and to such an extent that it was difficult to keep him in one position. He was constantly turning and twisting. His body was nude and we covered it with gauze dressing, and had sheet and blankets spread over him. He made no statement to anyone on the way to the hospital. Witness gave him a hypodermic injection of a quarter of a grain of sulphate of morphine before leaving the saloon. It took about half an hour to reach the hospital, and after arriving there we changed the dressings, occupying about twenty-five minutes time. During all of that time he was still suffering greatly. There was no break in his agony and suffering at any time. After the second dressing *Page 338 at the city hospital he was given aother hypodermic injection similar to the previous one. The morphine seemingly had no effect on him. This was due to his suffering and agony. About an hour and twenty-five minutes after receiving the telephone call, and after the second dressing at the hospital, witness asked deceased `if he had any coal oil, or gasoline, or turpentine, or anything of that kind on him at the time he caught fire;' and he replied, `No; that he didn't have anything at all.' Witness then asked him `if some one had thrown this on him,' and he said, `Yes;' and he was then asked `if he knew who they were,' and he replied `he did not know, but that he would know them if he saw them.' Witness then asked `if he had any money on him at the time,' and he said that `he had $26.' Witness then told him he could not get well, and deceased said nothing further at that time, though he repeatedly stated, both before and after this conversation, that he was not going to die. About two hours and a half after deceased was brought from the saloon, witness had another talk with him, which conversation was a little more than an hour after the one just detailed. At the time of this conversation witness was dressing deceased's wounds, and greasing them with vaseline, and deceased was suffering greatly. There was no diminution of his suffering until about 4:30 or 5 o'clock, when he became delirious, and after that did not recognize any one, and died about 6 o'clock. In the examination at the saloon we found his eyes were burned out. His suffering was unabated up to and after witness had both conversations with him. When witness had the second conversation, he asked `if he had a nickel with a hole in it,' and deceased said that he had a disfigured nickel. Witness asked him `How this nickel was disfigured, — if it had a hole in it,' and he said, `Yes.' Witness then asked him `if he knew any one that was in the saloon,' and he said he did not, but contended he would know them if he could see them. He said that one man was tall, over medium height, and had either a black mustache or a brown mustache, — witness not recollecting which; that there was one small man present; and he said he had been playing something some time before; witness believes he said it was pool. At the time of this last conversation he was still suffering extreme agony, and there was no diminution whatever in the extent of his suffering." We think the first conversation comes within the rule laid down by us in Freeman v. State, 40 Texas Criminal Reports, 546, where the principles of law governing this character of testimony were entered into. The second conversation, however, relating to the disfigured nickel, we do not think comes within the rules of res gestae. It has none of the elements of "instinctiveness or spontaneity," which are two of the chief characteristics of this kind of testimony. The answers of deceased were in response to leading questions asked him, and a long while after he had reached the hospital, some distance from the saloon.
Bill of exceptions number 16 reserved by appellant complains that Will Pruitt testified: "When my brother, Drew Pruitt, and myself *Page 339 got to the saloon of Chapman Faulkner, we went in to warm. Nobody was in the front room. We walked back to the stove in the back room. John Chapman, Eugene Faulkner, Bane, and the man by the name of Young were all back at the stove. Chapman asked us, after we stood there and talked a few minutes, to take a drink. We walked in to the bar, and Faulkner went around behind the bar to serve the drinks. When he got behind the bar, he took a piece of grass rope out from under his apron and threw it under the bar. After that he picked it up again, and threw it up further towards the end of the bar." And the witness Kirby testified "that on the second day after the burning of Bane he was in the building where the burning occurred, and found a piece of grass rope under the bar." The piece of rope so found was introduced in evidence over the objections of appellant. Appellant insists that said testimony was irrelevant and highly prejudicial, as there was absolutely no evidence on the part of said witness to connect the piece of rope in question in any way with the transaction resulting in the death of Bane; that the evidence was calculated to mystify and mislead the jury. We do not think appellant's position is correct. It appears from the record that the State offered this testimony as a circumstance to show some malevolent intent on the part of Faulkner towards deceased. It may be a vague circumstance to establish this fact, but, being a part and parcel of the res gestae of the transaction as detailed by the witnesses, it was admissible as illustrative of said intent, and was admissible for that purpose, to be given its proper weight by the jury. The same may be said with reference to the small bottle found by witness Kirby in the saloon, which smelled like it had chloroform in it; it being admissible as showing the intent of appellant, and as a circumstance tending to show deceased had been stupefied by some character of drink. The probative force of said circumstance would not render the same inadmissible. If the circumstance is meager, it would still be admissible as going to prove a fact germane to the transaction.
The seventeenth bill of exceptions complains that the court permitted John Willie and Jim Brannon to testify that shortly after the burning of Bane they arrested appellant, and carried him to the city hall, searched him, and found on his person $61.85, $31 of which was in paper currency and the balance in silver; and they also found on the person of defendant a nickel with a hole in it. The nickel was identified by the witnesses as the one taken from the person of defendant. Appellant insists said testimony was not admissible, because none of the money was shown to have been in the possession of deceased, and was not shown to have any connection with the burning of deceased. The proof tended to show that deceased had been robbed prior to the time the turpentine had been poured on him. The fact that appellant was found with money in his possession immediately after the robbery might be a circumstance to prove the fact that deceased had been robbed, although the money may not have been identified as the money of deceased; yet this *Page 340 would go to its probative force, and not to the admissibility of the testimony.
Appellant has reserved various bills of exception to the argument of State's counsel. In view of the disposition of this case, we only deem it necessary to say that counsel should not permit their zeal in the prosecution or defense of parties to force them beyond the decorums and proprieties of the profession. The argument should be limited to the testimony adduced upon the trial of the case. As to what the citizenship may have done under any particular contingency with reference to the guilt or innocence of defendant has nothing to do with his trial. Be he ever so guilty, under the beneficent principles of our law he is entitled to a fair and impartial trial before a jury upon the law and testimony, which testimony must be adduced under the rules of evidence established centuries ago, and approved by the consensus of wisdom of all courts of all countries. We do not deem it necessary to pass upon the guilt or innocence of appellant. Suffice it to say that a bare inspection of this record will disclose the fact that he has not been accorded a fair and impartial trial under the laws of this State, and, whether he be guilty or innocent, this right the law and Constitution of this State guarantee him. It is our duty to see that these rights are awarded and accorded him in the courts.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent.
[Note. — The State's motion for a rehearing was overruled without a written opinion. — Reporter.]