The state files an earnest motion for rehearing, in the light of which we have again reviewed the facts.
The case was reversed because we were unable to find testimony supporting the proposition that if Jesse Steen acted with malice aforethought in making an assault upon Stafford Reed, there was any concert of action or agreement, or acting together in such assault on the part of this appellant with his brother Jesse. It must not be lost sight of, in trying to understand the testimony, that this whole difficulty took place at night, and it not moonlit. The record discloses that there was an examining trial of this appellant, and that Horace Reed testified at same, and when the facts were fresh in his mind, — that he hit appellant on the head with his pistol because appellant said "Yeah" to him, and turned with an automobile crank in his hand. Horace said he had told appellant to go on away from his wife's house, and appellant started toward the front of his car with said crank in his hand. We quote from the examining trial testimony: "I said something to him, and he said 'yeah.' He had the crank, an auto crank. It was in his hand. I asked him if he could say yes sir to a white man, and he mumbled something I could not understand. I asked him what he said and he said 'yeah,' that is what I said,' and started turning. And then started turning towards me. About *Page 657 four feet from me. The crank was still in his hand. Then I hit him with my gun, and tried to hit him on the head. I could not say if I hit him or not. I tried to hit as he was turning around towards me with that crank. My gun flew out of my hand, someway. I did not know how. He came right on into me and clinched."
No witness for the state testified that after Horace hit appellant on the head with his pistol, appellant did more than to clinch him with both hands and try to hold him. Horace was evidently trying to get his pistol which he said flew out of his hands and on to the porch when he hit appellant with it. Relative to what appellant was trying to do at this juncture, Horace testified: "He was trying to keep me from getting loose from him. * * * He had both hands around me. * * * I got hold of the pistol first on the gallery and picked it up. * * * Jesse did not interfere with mine and Sylvester's tussle until Sylvester called him the second time, and that was after me and Sylvester had scuffled off the end of the gallery onto the ground. * * * When Sylvester called his brother the second time he came over and helped him. When Jesse came to help his brother, the two of them taken the pistol away from me. No, they did not strike me a blow. * * * They just went back to their car and left there."
Evidently during this struggle between Horace and appellant in the darkness, was when Jesse got out of the car, after being twice called to for help by appellant, and, as Stafford came toward the struggling pair, Jesse then, — as the state claims, — struck Stafford with the rifle. If appellant was then struggling to keep Horace from getting the pistol, as the evidence cogently suggests, and Horace had gotten it, — a necessary inference from the fact that the pistol had been thrown on the porch when Horace struck appellant on the head, — and they had struggled off the porch, and Horace still had the pistol, — it would appear perfectly reasonable that appellant's appeal to his brother for help would have for its purpose self-protection, and to take the pistol away from Horace, which in fact was done by the two of them. Jesse Steen struck Stafford with the rifle and came on to help his brother, as appellant asked him to.
We have sifted the evidence trying to find something to furnish support to the theory that in calling to his brother to come and help him under the circumstances, appellant intended that his brother should strike Stafford Reed with the rifle, or intended thereby to make himself a principal in an attack whose necessity, if at all, arose immediately, and was not the result of any pre-arrangement or understanding, or concerted action *Page 658 between appellant and his brother. We have been unable to find such testimony.
We are constrained to overrule the state's motion, and it is so ordered.
Overruled.