Conviction for murder; punishment, ninety-nine years in the penitentiary.
A meeting was in progress at a negro church. A white man, Keating, had carried negroes to this meeting and was waiting to *Page 461 take them home. Deceased, also a white man and constable of the precinct, came to the place. Another white man, Mims, was also there. The rest of the crowd were negroes. Deceased undertook to take a pistol from one Castleberry who resisted and attempted to draw a pistol and was shot by deceased. The brothers of Castleberry rushed up and a general fusillade began. According to the testimony of Keating, appellant ran up at this juncture behind deceased and shot him in the back, saying: "They killed my brother too, the G__d d___n white s___ of b____s, make away with all of them." Shots were aimed at Keating also who tried to get away and begged the negroes not to shoot him. Deceased had fallen, but was breathing and Keating started toward him. He testified that at this juncture the negroes commenced holloing at him, and one of them said "Where are you going, you had better stop and go back, you white s___ of a b____, we will fix you like we did him; we will make away with you." About this time Keating said that Robert Castleberry ran to deceased, stomped him in the breast, beat him in the head with a plank, and started at witness, threatening to "Bust his G___ d____ brains out." The defense was an alibi. Appellant had several witnesses who swore they were with him at a truck on the opposite side of the church from the scene of the shooting, at the time same took place; also others who swore that they were present at the shooting, saw those who took part therein, but did not see appellant there, and did not see him shoot. Appellant also introduced Mims, the third white man present at the shooting. This witness testified after deceased shot Castleberry, a negro shot deceased in the back, and kept on shooting, and that he saw no one else shoot deceased. Asked by defense counsel to look at appellant and state if he was one of the negroes who did that shooting, the witness replied "Looked like him to me." In rebuttal the State introduced a witness who said that at the time of the shooting, he was eight or ten feet from the truck on the opposite side of the church from the scene of the shooting and saw the parties who had testified to appellant's presence there at said time, — but he did not see appellant there.
There are four bills of exception. The first complains of the admission of testimony of the details of the meeting, conversation and acts of Castleberry, the negro who was shot, and deceased just prior to the shooting of deceased, and that at once after deceased shot Castleberry, a brother of the latter ran up and began shooting at deceased. This bill is qualified by the statement of the trial *Page 462 court that this testimony led up to the shooting by appellant and was necessary in developing the res gestae. We think the testimony admissible.
The next bill presents objections to testimony showing that the negroes or some of them, were shooting at witness Keating and threatening him, and that after deceased fell a brother of Castleberry "stomped" deceased in the breast, beat him over the head with a plank, and threatened Keating. The objection made was that the testimony failed to show any conspiracy or acting together between appellant and the other negroes, or that appellant was present or participated in the difficulty, and that what took place after the deceased was shot was immaterial and irrelevant. The presence of appellant and his participation in the shooting were sworn to and were issues fully and fairly presented to the jury in the main charge, and a special charge given at appellant's request. If the jury believed the State's testimony, appellant voluntarily made himself a party to a shooting going on between the deceased and a brother of the negro shot by deceased, — and that appellant shot deceased in the back; also that he made himself a co-conspirator and coactor with those who thereafter assaulted or attempted to kill Keating or deceased, — by the statement attributed to him by Keating, "They killed my brother, too, the G__d d___n s___ of b____s, make away with all of them." Keating was a white man then aiding deceased, another white man, to take a pistol from Castleberry, a negro. While the shooting at Keating was going on, according to his testimony, some one unnamed called to him and said: "We will fix you like we did him; we will make away with you." This coming from the crowd of negroes, being in language identical with that previously used by appellant, and evidently being a statement made by one who identified himself with those who had "fixed" deceased, might with propriety have been regarded by the jury as coming from appellant. Regardless of this conjecture however, we think appellant's prior statement enough to make him a party to any act or word of others thereafter, which aptly tended to show intent or effort on their part to make away with deceased or Keating.
The bill complaining of the testimony of Huse Williams sets out the reception of no hurtful testimony, either act or word, but if so, same would be controlled by what we have said in our opinion expressed in disposing of the preceding bills of exception. So also of the remaining bill which sets out the refusal of the court below *Page 463 to give a special charge telling the jury they could not consider against appellant testimony of acts and words of other parties done and said after deceased was shot. If we are correct in holding that appellant's statements made him a party to what was thereafter said and done to these white men by others of said negroes in an effort to make away with them, it would follow that the charge under discussion was correctly refused.
No error appearing in the record, the judgment will be affirmed.
Affirmed.
HAWKINS, J., absent.
ON MOTION FOR REHEARING.