At the Tyler term, 1901, this case was dismissed, and now comes before us on motion to reinstate. The defects in the record have been cured, and the cause is now reinstated upon the docket.
By indictment returned at the January term, 1901, of the District Court of Bexar County, appellant was charged with killing John Grimsinger. The indictment contains three counts; the first, charging that appellant killed John Grimsinger by striking him with an ax handle; the second, by striking deceased with an ax; and the third, by striking deceased with some instrument to the grand jury unknown, which can not be ascertained and can not be given. Upon the trial appellant was found guilty, and her punishment assessed at confinement in the State penitentiary for life.
The following is substantially the facts adduced upon the trial: Appellant, a woman about 23 years of age, had been married to deceased about five years; deceased had been living with his wife and little child in a four-room house in the city of San Antonio for some time, and worked as night barkeeper for his brother-in-law Ducos. He was on duty from 7 o'clock at night until 7 o'clock in the morning, and slept during the day. An old Mexican by the name of Juan Rocha worked about the home and had been with the family for a long time. The killing occurred between 5 and 6 o'clock in the evening. The Mexican and appellant were seen together from 1 o'clock on the day of the murder until about 5 o'clock that evening, or afterwards, at the woodshed, a few steps from the residence of deceased. About that time Rocha entered the residence and killed deceased with an ax or some blunt instrument. Afterwards Rocha and appellant were arrested; and appellant, upon being carried before the grand jury, made a voluntary statement, *Page 16 after the usual statutory warning, in which she stated that while she and Rocha were in the yard on the evening of the killing, they discussed the killing of her husband, and agreed that Rocha should kill him; that she told Rocha her husband was mean to her when he drank. Thereupon the Mexican went into the house and killed deceased while he was asleep, she remaining on the outside of the house. In about fifteen minutes Rocha returned, and told her that he had killed deceased. Thereupon they went into the kitchen, appellant cooked supper, and she and her little girl, about five years old, sat down and ate supper with Rocha, — the dead body of her husband being in the adjoining room. Subsequently Rocha went into the room where deceased was, put deceased's clothes upon him, and about midnight took the body, carried it about a block from the house, and deposited it in the street. He then returned to the residence, where they discussed the propriety of burning the house. They then took some bloody clothes and other clothing, put them in a rocking chair and some in a barrel, and sprinkled oil over them. Appellant then took the little child and put her in the bed or cot upon which its father had been killed; that about 5 o'clock they set fire to the house. Rocha left the premises, stating he would go where they could not find him; and appellant started to leave after setting fire to the house. When she reached the gate she met a negro, and remarked, "My house is on fire." The negro replied, "Where?" She pointed to the house, and said: "Don't you see right there? It's on fire." The negro asked her if she had any buckets to put out the fire, and she told him "Yes." The negro then gave the alarm of fire, and ran around the corner a short distance and gave the alarm there. The fire department was summoned. The negro secured the services of a white man, and finding the doors locked, kicked them in; and with some buckets the two nearly put the fire out. Appellant left the residence and went to a neighbor's, about a half block distant, in her stocking feet, carrying her shoes in her hand. She told this lady that her house was on fire. She hallooed to the parties approaching the burning residence, "Be certain and save my sewing machine." The neighbor asked her why she did not go down and superintend the saving of her things and show them where her clothes were. Appellant tried to put on her shoes, but could not. The neighbor loaned her a pair of shoes; she put them on and went back to the house. Thereupon appellant proceeded to wash the gallery, where there were some blood spots. In the meantime the fire department had arrived and extinguished the flames. One of the firemen discovered some burned clothes around a hole that had been burned in the floor, and started to take them out into the yard. Appellant objected to this, saying, "I will clean up; I will attend to it myself." The fireman raised up the clothes and they burned to a blaze; and then he took them out into the yard. The fire department left the premises, and thereupon two men came to the house, knocked at the door, and she opened it. One of the men said, "This looks mighty funny; Johnny is lying up there dead, and you had a fire *Page 17 here this morning." She said, "What Johnny?" And he said, "Johnny, your husband." And one of the men states that she put her hand up to her face and burst into tears and closed the door. The other stated that she put her hand to her face, went inside, and shut the door. Thereupon she left the premises, going in the direction of the same neighbor's house; and met another man, who asked her where she was going. She replied, "Why?" and burst into tears, and went to the neighbor's. She left her little girl there, and returned to her residence. The brother-in-law of deceased then arrived, and went into the residence, accompanied by a police officer. The brother-in-law called appellant by her given name, saying: "Johnny [meaning the dead man] was killed in this house and was carried up yonder, and the blood traces from where that body is to this house. It looks mighty strange. Now I want you to tell me who did this, so I can find out who it is and have him arrested." Appellant was silent. Witness said again: "If you want me to defend you, you must tell me who it was," and she replied: "O Ducos! O Ducos! what shall I do? What shall I say?" The evening prior to the homicide, about 8 o'clock, a messenger was dispatched from the saloon to the house and hallooed. Appellant came out on the porch, and the messenger stated that the brother of deceased and also the proprietor of the saloon wanted to know whether Johnny (deceased) was going that night to work, as his brother was feeling bad that night; they wanted to know if he would be at work. Appellant replied that deceased had already gone to work. (It will be noted that at this time her husband was dead.) The next morning a little boy came down to the house, and asked her where her husband was, and if she wanted him to go and tell her husband that the house had been on fire. She replied that her husband was at work at the saloon, and to go down there and tell him to come back, that the fire was out. Various witnesses on the next morning asked her as to the whereabouts of her husband, and she replied that her husband was at work. Defendant appeared to be calm and free from agitation or excitement all this while.
In addition to the foregoing, two or three days after the homicide, a bloody ax was found in the wardrobe in the house, which was practically identified as the ax of the codefendant Rocha; also a pillowslip and pillow, and dress and skirt were found in the watercloset upon the premises, quite thoroughly saturated with blood. As above stated, the blood traces were distinctly followed from the room where deceased was murdered to where he was found lying in the street, on the sidewalk. Appellant's own confession, after proper warning, before the grand jury, covers much of the testimony above detailed.
Appellant's first contention is that the court erred in overruling his second application for continuance. An inspection of the application in the light of the record before us discloses no error, since the testimony was cumulative. It appears that appellant proposed to prove by the absent witnesses that Rocha and deceased had a fuss and quarrel a *Page 18 short while before the homicide. Appellant's confession fully disclosed this fact.
Appellant also urges that the court erred in permitting Fred W. Cook, who was foreman of the grand jury that returned the bill of indictment, to testify, over the objections of appellant, as to the statements or confessions made by appellant before said grand jury on the 17th day of January, 1901. His objections being that to divulge said statement or confession was in violation of article 404, Code of Criminal Procedure, and article 213, Penal Code, the truth or falsity of said confession or statements not being under investigation; she was then under arrest, and the same was not voluntarily or freely made, but was made by her under and by reason of hopes and inducements made and held out to her by members of the grand jury and other officers of the law that by making said confession or statement the said grand jury and other officers charged with the duty of enforcing the penal laws would, on account thereof, be light upon her.
The first objection has been passed upon by us in the case of Wisdom v. State, 42 Texas Criminal Reports, 579. We there held the admission or confession of accused made before the grand jury, after being warned in regard to the crime charged, was competent evidence against him on the trial. This case was followed by us at the Dallas term, 1902, in Giles v. State,43 Tex. Crim. 561, 4 Texas Ct. Rep., 650. However, we have read with great interest the careful and able brief of appellant's counsel upon this question, but we do not see any just legal reason for changing the rule laid down in those two cases.
Bill of exceptions number 3 (presenting the latter clause of the grounds of complaint) covers eighty pages of the transcript, and after a most painstaking reading and rereading of the same we deduce the following conclusion: Appellant was taken before the grand jury at the instance of the district attorney. She was there properly warned, as required by the statute. Thereafter she made a statement in which she shows her guilty participation in this crime. Some time after the confession was made, the following statement was made to appellant by a member of the grand jury: "If you desire us to be light on you, you had better tell the truth." Appellant then, in substance, expressed the hope that they would be light on her. As we understand the qualification of the learned trial judge to the bill of exceptions, nothing that appellant said after this statement was made to her by the grand jury was permitted to be proved against appellant. We do not think that the inducement held out subsequent to the confession will operate to exclude such prior confession made under and after proper legal warning. The inducement must precede or accompany the confession. Mental hope of immunity alone, entertained without any inducement creating the same, is not sufficient. There must be an inducement held out by a proper party as the basis of that hope of immunity, in order to avoid the introduction of the confession. Here, however, all statements made by appellant after the statement to the grand jury were excluded; and *Page 19 there was a proper warning given and the proper predicate laid for the confession actually introduced. For further authorities on confession in jail, other than the Wisdom case, supra, see Lopez v. State, 12 Texas Crim. Appeals, 227; Thomas v. State, 35 Texas Criminal Reports, 178. In addition, we desire to call attention to the fact that appellant, prior to being placed in jail, was carried before the justice of the peace; and there the following conversation occurred, which we quote from the testimony of the district attorney as follows: "I took no part in the matter at all. My recollection is I was sitting at my desk, and the justice of the peace was at the window, and he said something to appellant about this being a peculiar sort of case; and the best you can do is to tell the truth and the whole truth about it; or, it would be much better for you, or something of that character. And appellant replied, `There is no reason why I should do anything else,' or something like that. Then the justice of the peace left. I do not remember when the officers left, but I know the officers went off to see if there was a man by the name of Rocha; and appellant sat there for some time, and the sheriff returned to me, and informed me that there was such a man as Rocha. And I thought the circumstances were sufficient to warrant the action; and about half past 1 o'clock I told defendant that she would have to be arrested in this matter. It was the first information that she had at all that she was to be arrested, because she said, `You are not going to arrest me, are you?' And I said, `Yes, I expect, Mrs. Grimsinger, we will have to arrest you and put you in jail.' She said, `Don't arrest me; don't put me in jail.'" The fact as to whether or not appellant was arrested at the time of the statement above detailed between her and the justice of the peace is somewhat controverted by other witnesses. But, concede the fact that she was under arrest, still the statement made by the justice of the peace would not justify the court in excluding the testimony. We have several times held that where the sheriff told the accused that it might be better for him to tell the truth, and similar statements, would not justify the exclusion of the confession on the ground that the same was not voluntarily made. For a full discussion of this matter, see Thompson v. State, 19 Texas Crim. App., 93; Parish v. State, 35 Tex.Crim. Rep.; Anderson v. State, 54 S.W. Rep., 58; Carlisle v. State, 37 Tex.Crim. Rep.; Williams v. State, 65 S.W. Rep., 1059.
Appellant's third objection is, because the said statement was made by defendant in the grand jury room, was reduced to writing, and having been so reduced at the time so made, said grand juror at the time acting as clerk of the grand jury; and that the said written evidence of her statement or confession was the best evidence, and which such writing was then in possession of the district attorney, by reason whereof the oral testimony of said statement was not admissible evidence. The trial court explains this bill with the statement that appellant offered this testimony; and this of itself disposes of his objection. However, the fact that the statement had been reduced to writing would *Page 20 not exclude oral testimony of its contents or exclude other testimony given at the same time under the same sanction. Appellant complains because the court permitted the witness E. Ducos to testify, over her objections, that on the 20th day of January, 1901, defendant having been in jail since January 17th, that he went to the house occupied by defendant and deceased prior to his death and unlocked a wardrobe in one of the rooms of said house, with a key which he had borrowed from some other person, and in said wardrobe found an ax which had blood and hair on it. Appellant objected because defendant was then in jail and had not been in possession of the house or occupying the same for two or three days; and because said acts of said witness occurred in the absence of defendant, and were not binding on her. And it is contended that, in connection with the testimony of said witness, the court erred in permitting the State to introduce in evidence the ax. There was no error in the ruling of the court. The fact that appellant had not been in possession of the house for two or three days, and that other parties may have had access to the same, would only go to the probative force of the evidence and not to its admissibility.
Appellant insists that the court erred in the following portion of his charge: "When the evidence satisfies the mind of the jury beyond a reasonable doubt that the killing was the result of a previously formed design by the person acting to kill deceased, and that the design was formed when the mind was calm and sedate and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to have been unlawful, and done with malice, then the homicide is murder in the first degree." Appellant's objections to the charge are, "that by the use of the words `person acting,' the charge became uncertain and misleading to the jury; and in connection with the facts did not announce a correct rule of law and was erroneous." The charge complained of, taken in connection with the whole charge, is correct, and we do not believe it was misleading or uncertain. This also disposes of a similar complaint with reference to the tenth paragraph of the charge of the court.
Error is assigned with reference to the following portion of the court's charge: "When an offense is actually committed by one person, but another is present, and, knowing the unlawful intent, aids by acts or encourages by words or gestures the person actually engaged in the commission of the unlawful act, or who, not being actually present, keeps watch so as to prevent the interruption of the person engaged in the commission of the offense, such person so aiding, encouraging, or keeping watch is a principal offender." Appellant contends that this charge was not applicable to any evidence in this case; does not announce a correst rule of law, and is not the statutory definition of a principal. "In order to render a person a principal in the second degree, or an aider or abettor, he must be present, aiding and abetting in the fact, or be ready to afford assistance if necessary; but the presence need not be strictly actual immediate presence, such a presence as would make him an eye *Page 21 or ear witness of what passes, but may be a constructive presence." 1 Russ. on Crimes, sec. 49. The American and English Encyclopedia of Law defines "present" as follows: "Being in view or immediately at hand." In the case of Pryor v. State, 40 Texas Criminal Reports, 643, we had under consideration a similar question to the one now at issue. In that case by an inspection of the original papers we find that appellant was in the shed-room when the killing occurred in the front room of the residence. Appellant earnestly insisted under this state of facts that the court erred in not charging on the law of accomplice. We held that, under the facts, appellant was clearly a principal. In this case, defendant, under the most favorable aspects, was at the woodshed at the time her husband was killed in the house, a few feet away, having agreed with Rocha that he should go and kill her husband, and she was standing on the outside watching. Whether or not this last statement be true, her juxtaposition is such as clearly brings her in legal contemplation present at the homicide. It follows, therefore, that the court did not err in giving said charge. For a discussion of the law of principals, see McClain Crim. Law, secs. 199 and 204; State v. Arden, 1 Bayard, 487; 1 Am. and Eng. Enc. of Law, 2 ed., p. 258. Furthermore, we think the charge is a correct statutory definition of principals.
Complaint is also made as to the following portion of the court's charge: "Any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illlegal act; and any person who is a principal under the rules herein above given you may be prosecuted, and if found guilty may be convicted and punished as such." This charge is a substantial copy of article 78, Penal Code, which reads: "Any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act."
Appellant objects in the tenth ground of his motion to the court's charge on the law of accomplices, in that the same was an erroneous statement of the law and inapplicable to the facts. The charge is an exact copy of article 79, Penal Code, defining accomplices; and we do not think the court erred in giving the same in full. The eleventh ground of the motion is with reference to the court's charge on the law of accessories. This is an exact copy of article 86, Penal Code, and the court did not err in giving the same in charge to the jury.
The twelfth ground of the motion complains of the following portion of the court's charge: "And if you so believe from the evidence, beyond a reasonable doubt, and further believe, beyond a reasonable doubt, that the defendant was, with express malice aforethought, present at the time and place of such killing, and knew the unlawful intent of said Juan Rocha, and with express malice aforethought aided by acts, or encouraged by words or gestures the said Juan Rocha in the commission of said offense," etc. Appellant complains that the charge is not applicable to the facts of this case, there being no evidence that defendant aided *Page 22 the said Juan Rocha in killing deceased by acts, or encouraged him by words or gestures in said killing; or that she was present at the time of said killing; and said charge was misleading and prejudicial to defendant. It is our opinion that the charge is applicable to the facts adduced on the trial, and was properly given by the court.
The thirteenth ground of the motion for new trial complains of the following portion of the charge: "And further believe beyond a reasonable doubt that defendant, with express malice aforethought, advised the said Juan Rocha to commit said offense, or agreed with him that it should be so committed; and that she was with express malice aforethought present at the time of the killing, knowing the unlawful intent of said Juan Rocha, and that such killing was in pursuance of such advice or agreement, whether she aided or not in the illegal act." This is the law, and it is applicable to the facts of this case.
Appellant complains of the following charge: "And further believe beyond a reasonable doubt that defendant with express malice aforethought, knowing the unlawful intent of said Juan Rocha to kill and murder upon his express malice aforethought, did keep watch so as to prevent the interruption of the said Juan Rocha in the committing of said offense, though not actually present, then you will find the defendant guilty of murder in the first degree," etc. There was no error in giving this charge.
Appellant's sixteenth complaint is with reference to the court's charge on circumstantial evidence. The charge is correct as given, and it was not necessary or required to make an application of the law to the facts. Appellant also complains of the court's charge on insanity. We do not think the charge is subject to the criticism urged by appellant.
Appellant, in the eighteenth ground of his motion, complains that the evidence raised the question of fact to be determined by the jury as to whether, under all the circumstances of the case, the confession of defendant before the jury, and admitted in evidence, was freely and voluntarily made, and as to whether she had been properly warned and cautioned as to whether or not the said confession was the result of fear or hope, and that the court should have instructed the jury affirmatively on that subject. An inspection of the record discloses the following facts: At the time the district attorney attempted to lay the predicate for the introduction of the voluntary statement of appellant before the grand jury, appellant, through her counsel, requested the court to have the jury retire pending the introduction of this testimony. After hearing the testimony, the court ruled that the predicate was properly laid. Thereupon appellant filed various exceptions, which have heretofore been discussed, as to the introduction of the testimony. Thereupon the district attorney offered anew the witness Fred Cook to prove the predicate before the jury; and at that juncture the following colloquy ensued: "Mr. Ward, of counsel for appellant, stated: `If your honor please, I understand that matter was all gone into before your honor this morning, and to go into that matter again, it will necessitate *Page 23 our taking fresh exceptions.' The district attorney replied, `All right, if we are to be held to that.' The court replied, `There is no necessity for it.' Mr. Ward: `Your honor understands this was all gone into, and we saved exception that we dictated to the stenographer this morning. We objected to the whole of Mr. Cook's testimony. Your honor has overruled these objections, and we have excepted, and we can see no use of consuming time going all over it again.' Then the confession that defendant made to the grand jury was detailed to the jury, and no testimony was introduced before the jury touching the predicate."
Under this state of facts, even conceding appellant's contention that it was an issue of fact, as to whether or not the confession was voluntary, this issue was decided by the court, and no evidence thereon was submitted to the jury; hence it was not error for the court, under any contingency, to fail to charge the jury on the issue complained of. Highsmith vs. State,41 Tex. Crim. 32.
The court charged the jury that if they believed appellant was an accomplice or accessory to acquit, after defining what an accomplice and accessory were. The charge was a proper charge; but there was no necessity, under the view we take of this case, of giving the same at all, since under all the evidence appellant was clearly a principal and not an accomplice or accessory.
We do not deem it necessary to discuss any other issues. The charge of the court is correct, and admirably presents the law of this case.
No error appearing in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.