Appellant complains in his motion for rehearing that we erred in holding that the principle enunciated in his special charge No. 7, was covered by the main charge of the trial court. We did not discuss this matter at any length in our original opinion. Appellant's special charge No. 7 was as follows:
"Gentlemen of the Jury: You are charged that you cannot consider for any purpose the words, acts or deeds of Tom Hays or Simeon Hays as the motive which actuated either or both in assaulting or shooting the deceased, Tom Smith, unless you believe beyond a reasonable doubt that the defendant Boy Barnes knew of same and had previously agreed to the slaying of the said Tom Smith. *Page 56
"In this connection you are charged that the defendant can only be tried on the motive which actuated him on the occasion in question and he is not bound by the motive, intent or acts of Tom Hays or Simeon Hays, or both unless you believe beyond a reasonable doubt that he knew of same and agreed thereto."
We find the first part of this charge hardly clear, it not appearing how the words, acts or deeds of the Hays brothers could be the motive which actuated them or appellant. Insofar as the last paragraph of said charge presented a correct legal proposition, same was fully covered by that portion of the main charge of the trial court which is as follows:
"I further charge you, that if you believe from the evidence beyond a reasonable doubt that either Tom Hays or Simeon Hays unlawfully killed Tom Smith, and that the defendant was present at the time of such killing, still you will find the defendant not guilty unless you believe from the evidence beyond a reasonable doubt that the defendant knew the unlawful intent and aided by acts, or encouraged by words or gestures the party or parties who did the killing, or unless you believe from the evidence beyond a reasonable doubt that the defendant, Tom Hays and Simeon Hays agreed to kill said Tom Smith."
Aside from the evidence of appellant, the record showed without controversy that he was acting a leading part in the tragedy in which the life of deceased was taken, and there was no other evidence tending remotely to suggest a different motive on his part from that which actuated the Hays boys. Being unable to agree with the contention of appellant as to the error, and this being the only question raised in the motion for rehearing, same will be overruled.
Overruled.