89 S.W. 817 | Tex. Crim. App. | 1905
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
A branch of this case to wit: Catherine Smith v. State,
We believe it was competent for the State to introduce, as was done, all the proceedings in connection with and including the judgment in the case of the Union Central Life Insurance Co. v. T.E. Smith and Catherine Smith, upon which the order of sale and writ of possession was issued, including the sale, order of sale and the writ of possession. It is true that appellant was not a party to said judgment or proceedings, but his mother and father were: he being a minor and living with them. Even as a stranger he would be bound by the judgment and could not resist the execution of the writ. In Catherine Smith v. State, supra, it was held that the writ was not functus officio, but the return day not having expired, and the same being still in the hands of the officer, it could be further executed. Muphree on Sheriffs, sec. 1021, citing Jackson v. Hawley, 11 Wend., 182; Crockett on Sheriffs, sec. 575; Freeman on Executions, sec. 474-5-6-7.
In this connection it is also strongly insisted by appellant that what transpired between T.E. Smith and the officers out in the yard when Smith left the house, just prior to the homicide, with reference to the writ of possession, and the fact that Grubbs had the writ and had come to execute it, should not have been introduced against appellant, because he was not present, and the statements of the officers to his father could not affect him. We believe this was a part of the res gestæ of the transaction, and T.E. Smith himself being the owner of the premises, it was only necessary to exhibit the writ to him. At any rate, it is shown by appellant's own testimony that he knew or had reason to believe that the parties in the yard, Sparks and Grubbs, were officers. There is no suggestion that he believed they were Pendleton or the Brewsters who had come to take possession by violence. Appellant was watching them from the bed through the window. It is further shown by the witness that as soon as Grubbs came into the house, immediately the firing began. According to appellant's own testimony there could have been no opportunity for Grubbs to have declared his *239 purpose and have exhibited the writ. He says, the struggle over the gun began at once. If there was no opportunity before deceased was shot for him to have disclosed his purpose, he would not be required to do so. Appellant knew that the parties at the gate were officers. He had previously seen the wagons arrive, which he must have known was for the purpose of removing his father's goods from the place. He had heard his father declare, that the writ of possession was functus officio, and could not be executed the second time. In other words, he knew enough to charge him with notice of the mission of the officers in coming to the premises. As was said in Plasters v. State, 1 Texas Crim. App., 673, if the party whose arrest is attempted under legal process knows the purpose and official character of the officer, and the arrest be otherwise lawful, it his duty to submit, and resistance is unjustifiable, though the officer makes no declaration of his official character or purpose. Here, as stated, there was no time afforded the officers to disclose their purpose to appellant. There was no opportunity for the officer, after he came into the house, to disclose his purpose to appellant or his mother. He was shot down at once. Under such circumstances appellant could not claim self-defense, or defense of his mother in resisting an officer. Cortez v. State, 4 Texas Ct. Rep., 1. As heretofore announced it was competent for the State to show the mission of the officers in going to the place, that their purpose was to execute the writ, and what transpired between the owner of the premises, T.E. Smith, and the officers out in the yard was a part of the res gestæ of the transaction. Appellant will not be heard to say that he was not bound by what transpired between the officers and his father in his view, especially when no opportunity was afforded the officer, after he entered the house, to disclose his purpose to them.
On the appeal of Catherine Smith v. State,
Appellant reserved an exception to the action of the court permitting the witness J.E. Sparks to testify that on Saturday evening, July 18, 1903, while moving the Smiths out the first time, in the presence of several others, he had a conversation with T.E. Smith, who remarked, that it looked like we were in a big hurry to-day moving him. He said it was the worst thing that ever happened to him. He said before he would go through such a thing again, he would get his winchester and shoot until he killed somebody; said he had three boys and he was going to teach them to do the same thing if ever anything of that sort came up with them. Grubbs remarked, "You ought not to blame the officers." To which Smith replied, "By God, they ought not to put themselves up as targets then." Also in the same bill appellant reserved exception to the testimony of Pendleton, who testified that during the time of the execution of the first writ, or a day before that, *241 he was going over the field to get the tenants to attorn to him, and found Mrs. Smith at home, but Mr. Smith was not there; that he had a conversation with her, in which he told her: "That I supposed she knew we had bought the land at the sale, and asked her if she and Mr. Smith had decided what to do about it; she replied that she did not know what Mr. Smith was going to do, but she knew what she was going to do. I asked her what she was going to do; she declined to say." This was objected to on the ground that it was hearsay, and could not affect appellant, he not being present. That it antedated any conspiracy, and that the remarks were not made in furtherance of any conspiracy then existing. Certain other testimony of the same character was introduced. In the opinion of the writer, while this may not have been admissible under the doctrine of conspiracy, however, as was held in Cox et al. v. State, 8 Texas Crim. App., 254, although this testimony was not admissible, because no conspiracy then existed, and even if the conspiracy had existed it could hardly be said that these remarks were made in furtherance of the conspiracy, yet under the doctrine of principals such testimony was admissible. The court said in that case: "To our minds, a great deal of the trouble, confusion and discussion with regard to conspiracy, where two or more are charged with the commission of crime, might and can be obviated by keeping in mind these statutory provisions. If the parties can be identified at the time and place as joint participants in the commission of the crime, why the necessity of going behind that fact to establish a conspiracy to do the act already accomplished; and for which the law denounces them as principal offenders and liable to punishment as such? Why want a better predicate, or any further evidence even of a conspiracy, if their presence and guilty participation is already established? To us it seems too plain to admit of argument, that when two or more are found acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators, — endows them as a body with the attribute of individuality, — merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders in pursuance of the agreed plan, and tending to throw light upon it or the motive or intent with which it was committed, is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted and tried jointly or separately." Here all three of the parties, T.E. Smith, his wife and appellant were principals and under the rule laid down above, ipso facto, conspirators. They were all on the ground at the time the homicide was committed and participated therein, and the motive and intent of each of the principals was competent testimony. Besides this, the court in its charge limited the effect of this testimony as to conspirators, by instructing the jury in effect, that they could only look to acts and declarations and conduct of others in case they believed a conspiracy *242 had been established, and then only such acts, etc., as were in furtherance of the common design.
There is certain other testimony, which involves the procuring of arms and ammunition by T.E. Smith, after he had moved back on the premises, and after he had been joined there by his son (appellant). And also the testimony regarding the barricade of the doors and windows of the house with sacks of wheat. These acts, in our opinion, were subsequent to the formation of the conspiracy, and were unquestionably in furtherance thereof, and were admissible against appellant, provided he became a party to the conspiracy to resist the officers in attempting to execute the writ of possession. This simply involves the question whether or not, there was enough testimony to go to the jury as to whether Addison Smith (appellant) entered into the conspiracy. We think the testimony is abundant to the effect that both T.E. Smith and his wife, when they went back on the premises, had determined to hold possession thereof against any attempt of the officers to regain it, under the writ which they had been advised was functus officio, and could not be again executed. True, there is testimony tending to show that what they did was with reference with resisting an anticipated attack on the part of Pendleton and the Brewsters. Still this theory did not preclude the State from insisting on the other theory, provided there was evidence to support it. As stated, there could be no question that they procured advice of counsel to the effect, that the officers could not re-execute the writ of possession; that it was functus officio. T.E. Smith and his wife knew the officers, and undoubtedly knew Sparks and Grubbs when they came. They saw they were prepared to remove them, having brought wagons for that purpose. Smith went out, as is testified, for the purpose of parleying and protesting against the removal. Both Catherine Smith and appellant were in view of what was transpiring in the yard. Not only so, but they were prepared to resist any intrusion into the house. Appellant was lying on the bed with a shotgun by his side, looking at what was transpiring in the yard. Mrs. Smith was looking through the screen-door at them. She also had a gun conveniently near on the table. She knew who the parties were in the yard, and knew that it was not Pendleton and the Brewsters. If appellant entertained any doubt as to whom these parties were he should have inquired of his mother, as a prudent, law-abiding man. He states himself that he knew they were officers, and was bound by the tangible facts before him to take notice of their purpose. It is true that throughout the record this defendant is remarkably reticent. In his testimony he disavows knowledge of the most obvious facts transpiring around him. But there are some things so plain as to challenge denial or contradiction. Notwithstanding his reticence he will be held to take notice of those physical facts and surroundings which declared the purpose of his father and mother to resist the ejection by the officers at all hazards. There is enough in this record to charge him with knowledge of the pending conspiracy and its *243 purpose, and he cannot escape responsibility by simply denying that he did not understand or know the intent and purpose of his codefendants. So that all testimony indicating acts or conduct of his codefendants transpiring after the formation of the conspiracy, and in furtherance thereof, was admissible against him. The court properly guarded all of this testimony in the charge; and of course, if appellant's theory that he was not a party to a conspiracy, was correct, then, under the charge of the court, he was not affected by any such testimony. The charge of the court was even more liberal to defendant than he was entitled to, because even as to the acts of co-conspirators the jury were instructed that they could only be considered for the purpose of illustrating the motive, purpose and intent of the parties forming the conspiracy, whereas the law is, that such acts of the co-conspirators become the acts of appellant.
In this connection appellant contends that the court should have instructed the jury with reference to the conspiracy to thwart any attempt on the part of Pendleton and the Brewsters to retake possession. There was some testimony admitted on this line, but there was no attempt on their part to retake possession, and, as stated, the parties knew at the time of the homicide that it was not Pendleton or the Brewsters that went there for the purpose of securing possession, but officers of the law. We do not think the court was required to charge further on this subjet than was done.
Some objection is urged to the admission of conversations detailed by Pendleton and the Brewsters, which they had with T.E. Smith on or about July 6th, in which they manifested an amicable disposition. We think it was proper, under the circumstances of this case, to bring forward in testimony all the salient facts attending the service of the first writ of possession, and matters even which antedated that. As stated by the court in his explanation, there was testimony introduced by appellant to the effect that Smith and his wife were having trouble with Pendleton and the Brewsters, and that all they said and did suggesting violence was with reference to an antecedent attempt to get possession by them. The court further states that he believes the testimony of these conversations and amicable talks was admissible in rebuttal of this character of evidence. In this we concur.
There is a long bill of exceptions (number 14) with reference to the testimony, and refusal to permit certain testimony of the witness A.J. Harris. We believe that the court in his explanation properly eliminated all the testimony relating to the designation of the homestead; that all of that portion of the testimony was withdrawn from the consideration of the jury, and they were instructed not to consider the same. We do not believe the question of homestead, under the circumstances of this case, cuts any figure. So far as this testimony is concerned, both T.E. Smith and his wife, were parties to the judgment, and whatever rights they may have formerly had with reference to any homestead were adjudged in the decree. They were estopped to deny the same. *244
Bill number 15 is also quite lengthy and is reserved to what appellant was not permitted to prove by witness Harris. We are not clear as to the purpose of the bill, but taking the explanation of the court, in connection therewith, it occurs to us that all of the testimony that was really admissible, so far as the witness Harris was concerned, he was permitted to state. Harris testified, according to the court's explanation, that he advised T.E. Smith, after he had moved back upon the premises that the officers would not and could not execute that writ (meaning the writ of possession) the second time, after it was fully executed. The same witness also testified that on the afternoon before the killing, in a conversation with said Smith over the phone, — Smith being in Temple and witness in Belton, — he told witness in regard to the sheriff coming out to put them out of possession; that he did not think the sheriff would undertake it. Whatever benefit appellant was entitled to from the advice of Harris, it seems the court permitted him to prove. It will be seen, however, that while Harris was disposed to advise his client that the officers would not undertake to re-execute said writ, he was careful not to advise them that they could resist the officers.
Appellant urgently contends that no conspiracy was shown on his part to resist the officers if they attempted to take possession, or that in order to prevent them that he with his codefendants had determined to slay the officers; and that the State's case is not made out as against this appellant. It will be noted in this connection that the court, besides giving the charge on manslaughter, gave a charge on self-defense, which substantially told the jury if they believed Addison Smith killed deceased, but at the time deceased was making an attack on Mrs. Catherine Smith, which caused defendant to have a reasonable expectation or fear of death or serious bodily injury to the said Mrs. Catherine Smith, and acting under such reasonable expectation or fear he killed deceased, they should acquit him. Now this charge was given in favor of appellant regardless of any conspiracy. It was tatamount to telling the jury that although they might believe a conspiracy had been formed to resist the officers in taking possession of said premises, yet, if deceased in the first instance made an attack on Catherine Smith, which caused defendant to apprehend death or serious bodily injury to her, he would have the right to slay him. The jury evidently did not believe in this theory, and they refused to believe it notwithstanding the plausible account given of the homicide by appellant. He testified on this line: "I was lying across the bed with my head near the window, and could see out where they were, plainly. After Mr. Saunders got in his buggy and I saw my father and the two men standing there talking, I didn't notice them for a moment or two, and then my attention was attracted by their movements. I noticed that they had moved up closer to the house, and my father seemed to be trying to come to the house, and the two men closed upon him, and he folded his arms and moved this way and that way towards the house, and they would get between him and the house. When I noticed this, I think I raised up on my elbow *245 so as to see better. In a few seconds they got up pretty close to the steps, and the man that I afterwards learned was Mr. Grubbs took a rapid stride up the steps and on the gallery, and passed out of my sight towards the door. After he passed from my sight towards the door, my attention was called to my mother. She was two or three feet inside and directly in front of the door, and seemed to be in the act of moving to the door. About the time I saw her, Grubbs came through the door meeting her, and she threw up both hands in front of her, and said: "Don't you touch me. Don't you put your hands on me." And she stepped back towards the table at the front of the bed. In an instant after she stepped back, they (both of them) stooped over the table, and in an instant they raised up and I saw the winchester rifle between them. Mother had the gun by the stock with her right hand and by the barrel with her left, and Grubbs seemed to have her by one arm, and to have his hand on the gun over her other hand. They both stooped over the table to get the gun, and when they came up the gun was raised between them, and he immediately commenced trying to wrench the gun from her and force her back towards the partition door. I whirled off the bed, and about the time I got on my feet on the floor I heard a report, and saw a flash between them near the partition door, and my mother gave a sort of smothered scream. I picked up the shotgun off the bed and fired at him at once, and he fell to the southwest a little to the left. I think the winchester rifle fell to the floor with him; it was lying near him when I saw it next. I am not positive what became of my mother when he fell. She came to me shortly after. As soon as I fired, I turned and looked out of the window to where my father and the other man were and saw them scuffling over a pistol. They were just east of the gallery and a few feet south of the steps, and my father had the pistol by the barrel and this man had it by the handle. I cocked the other barrel of the gun and covered this man through the window, and about the time I did this, they quit struggling over the pistol and stood there holding the pistol between them; and my mother came to where I was by the bed. I gave her the double-barreled gun, and I picked up the winchester shotgun and we went out on the gallery, and my mother told this man to turn my father loose. They walked together, both holding to the pistol, out near the gate, and then my father turned the pistol loose and the man put it in his scabbard."
In order to understand this testimony there are certain other facts necessary to be taken into consideration. Deceased did not draw his pistol; it was found on his left side in the waistband of his pants, under his vest, after he was killed. The gun that was fired was the winchester rifle that Mrs. Smith and deceased were struggling over. It was also proven by one or two witnesses that Mrs. Smith exclaimed, shortly after the shooting, either before or at the time she came out on the gallery, "Didn't I tell you I would fight for my home?" It was also shown that with her gun in hand she made Sheriff Sparks leave the *246 premises. Now, appellant cannot claim ignorance of what transpired in his immediate presence at the time and just before the homicide. For ought that appears the officer did not have time to make any declaration of his intention before Mrs. Smith exclaimed: "Don't you touch me; don't you put your hands on me." And if we read this testimony correctly she went to the table for the gun. This witness says she stepped back towards the table at the front of the bed, and in an instant after, both of them stooped over the table. However, when they raised up, he says that his mother had the gun by the stock with her right hand and by the barrel with her left, and Grubbs seemed to have her by one arm, and to have his hand on the gun over her other hand. Now, if appellant saw all this, he evidently saw that Grubbs was attempting to take the gun away from her to prevent her shooting him. He knew he was an officer; had been watching him through the window, and he is held to know his purpose in coming there, as he unquestionably knew enough to charge him with notice of such purpose. As he relates, when he witnessed this struggle of Grubbs to get the gun away from Mrs. Smith, and he heard a shot fired, he immediately shot Grubbs. Not only this, but without waiting to see whether or not his mother was shot, he immediately turns and covers the other officer, who was in the yard struggling with his father with his shotgun. He joins his mother in going on the gallery, making the officer desist, and making him leave the premises, and hears her declare, "Didn't I tell you I would fight for my home." We think that the jury, viewing these facts, in connection with the undisputed physical facts and other facts connected with the case, were fully warranted in disbelieving the defensive theory of appellant — that he slew deceased to prevent deceased from killing his mother; and in giving credence to the theory of the State to the effect that the homicide was committed in order to prevent the officers ejecting appellant's father and mother from the premises under the writ of possession. Indeed the law is, if appellant (which the facts here presented tend to show), engaged in a conspiracy with his father and mother to prevent the officers taking possession of the premises under the writ of possession, and if necessary to slay them in order to prevent them from executing the writ, then he could neither set up self-defense in favor of his mother or himself, provided the officers did not use unnecessary or excessive force. And we fail to see in this record any such excessive or unnecessary force, with the resistance offered. They did what an officer would be expected to do in attempting to prevent T.E. Smith from getting into the house, and in getting into the house themselves. If Smith, when approached by the sheriff near the gate and possession demand of him, had consented thereto; in other words, if he was not opposing the execution of the writ of possession, we would expect from him an entirely different coure of conduct. When he saw his protestation to the officers was of no avail, but that they intended to take possession when they advanced towards the house for that purpose, we would expect him to go with the officer in *247 a peaceful manner; if necessary open the door for him. Certainly we would expect him to request the inmates of the house to permit the officers to enter; instead of that his entire demeanor was one of opposition. According to the testimony of the officers, his endeavor was to get in ahead of them, evidently to enter the house first. On the way to the house and just about the time the officers entered the door, T.E. Smith (appellant's father) uttered the expression, "Look out boy," which, although appellant states he did not hear, in the light of events which transpired about that time, must appear to be very significant, and suggests an understanding between the inmates of the house and T.E. Smith, appellant's father. Indeed, it occurs to us, all that was said and done by the parties, Smith, his wife and appellant, after the officers entered the yard, and after T.E. Smith presented himself to the officers and protested against their taking possession, was done with concerted design. T.E. Smith, not only protested but opposed the officers taking possession under the writ; he threw himself in their way to prevent them entering the house; one of the officers had to draw his pistol in order to endeavor to overcome his resistance; he grabbed the pistol, and persisted in his opposition; and as soon as the other officer (deceased) entered the house he was shot down by the parties, who are charged with notice of the purpose of the officers in coming to the premises and who were looking on and saw what transpired in the yard. In our opinion the jury were amply justified in believing that the parties, appellant, his father and mother, had conspired together to resist the execution of the writ and taking possession of the premises thereunder; and if necessary, to slay the officers, in order to prevent them from taking possession. The evidence was ample to induce this belief, and the jury were justified in adopting it. We have examined this record carefully, and we do not believe it contains any errors of a reversible character. The judgment is affirmed.
Affirmed.
Concurrence Opinion
I concur in the affirmance. However, I do not agree with some of the views expressed by the writer of the opinion, wherein an attempt is made to draw a distinction between the law of principals and the law of conspirators. My views on this question were thoroughly discussed in Catherine Smith v. State,
Addendum
In the original opinion we discussed at length the doctrine of conspiracy, involving the charge of the court and the admission of testimony and it is not deemed necessary to again review that question. However, *248 appellant has seen fit to criticise the court's citation and discussion of the case of Cox et al. v. State, 8 Texas Crim. App., 254. In the original opinion we copied an excerpt from that opinion, in which the court stated, in effect, that much difficulty would be avoided by keeping in mind the statutory provisions with reference to principals. The court there stated that when the proof shows two persons were acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators; and that the previous acts and declarations of each or any such principal offender, in pursuance of the agreed plan, and tending to throw light upon it, or the motive or intent with which it was committed is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted and tried jointly or separately. In commenting on what was stated, appellant in his motion intimates that the court did not act on this principle at all, but excluded the declarations of Meador, testified to by witness Kilgore. We understand the court did exclude a part of Kilgore's testimony; that is, that portion which related to a conversation which took place prior to the killing of Geo. Brazzell on the way to the house of Hardin. Kilgore testified to another conversation between himself and Meador after they left, Hardin's house. We must confess it is difficult to make a distinction between the testimony of this witness as to what was said before arriving at Hardin's house, and what was said after leaving there. However the court drew a distinction, using the following language: "But it is said that the declarations of Meador simply showed a willingness or intention on his part to do certain things, without showing that any one else had agreed to act with him at that time. This objection is only applicable to the expressions used by Meador in the first conversation with Kilgore, on the way from Cox's to Hardin's. Upon mature reflection, we are of opinion that this testimony was not admissible under any rule of evidence, but was directly in conflict with all the known and recognized rules. The general rule is that, `the evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design, — what was said by them before or afterwards not being within the principles of admissibility.'" The court further says: "With regard to the two other objections to the testimony of Kilgore as to his conversation with Meador, which we have pointed out above, we deem it only necessary to say that, as urged, the objections are not tenable. `If two or more combine to do an unlawful thing, and the act of one, proceeding according to the common plan, terminates in a criminal result, though not the particular result intended, all are liable.'"
Now, we understand from the opinion in said case, that in proving a conspiracy to commit a crime, proof that two parties acted as principals in the commission of said crime, furnishes proof of the common intent to do that crime. If there is testimony tending to show that a *249
conspiracy must have been formed sometime before, in pursuance of which the crime was committed, the acts or declarations of either of said parties, in furtherance of the common design, though made in the absence of the other, would be evidence against both. We think there is logical reasoning in the rule, if one party commits a crime, and this is shown to have been upon motive, and another party is shown to have assisted and cooperated with him in its actual perpetration, but no motive is shown as to the latter, the motive of his co-principal will be attributed to him. In this case, as stated in the original opinion, the court submitted the issue of conspiracy to the jury, and instructed them, if this conspiracy was not shown, that they would not regard the acts and declarations of other alleged conspirators introduced in evidence, in the absence of appellant. And the court further in this charge, it appears to us eliminated all of the harm that could come from the introduction of such testimony in the absence of any conspiracy shown, to the motive and intent which may have actuated the party making the declaration. Furthermore, it may be stated in the opinion of the writer that recent authorities have gone to a greater extent in admitting this character of testimony than the Cox case and others cited by appellant. See Stevens v. State, 42 Tex.Crim. Rep., and Hudson v. State, 43 Tex.Crim. Rep., and see also Smith v. State, 21 Texas Crim. App., 96, and Harris v. State,
Appellant objected to the following charge, and insists on a reversal on that account: "If you believe defendant entered into a conspiracy with T.E. Smith and Catherine Smith, or either of them, etc., then you will consider the acts and declarations of T.E. Smith, but can consider them only for the purpose of illustrating the motive, purpose and intent of the parties, forming the conspiracy, if you conclude from the other evidence in the case, that such a conspiracy was in fact formed. You are further charged that unless you find beyond a reasonable doubt that the conspiracy was formed, and that Addison Smith (defendant) was a party thereto, then you will exclude from your consideration *250 all the acts and declarations, if any, of T.E. Smith and Mrs. Catherine M. Smith, from your consideration in this case." Appellant insists that this charge is erroneous, in that it told the jury, if appellant entered into an agreement or conspiracy with either T.E. Smith, or Mrs. Catherine Smith to kill the officers, in resistance of the writ of possession, then they could consider the acts and declarations of T.E. Smith against appellant. That is, if appellant formed a conspiracy alone with Mrs. Catherine Smith they could consider the acts and declarations of T.E. Smith against appellant, with whom he had not formed a conspiracy. Of course, this charge is subject to the criticism aimed at it by appellant, still we are unable to see how it could have injuriously affected him, for the conclusion is irresistible if he entered into a conspiracy with one of them, he entered into a conspiracy with both. In this connection we call attention to the charge asked by appellant on this subject, and given by the court, as follows: "You are charged that mere knowledge of the existence of a conspiracy on the part of the defendant does not make him a party to such conspiracy, but the evidence must show beyond a reasonable doubt that the defendant not only knew of the conspiracy, but participated in such conspiracy, and if you do not so find from the evidence, you will not consider the evidence of acts and declarations of T.E. Smith and Mrs. Catherine Smith, but disregard the same in your consideration of the case." Looking to the testimony and to the charge of the court in connection with the requested charge we cannot see how the jury could have been misled to the prejudice of appellant on this subject of conspiracy.
Again in his motion for rehearing, appellant calls our attention to the following charge: "If you believe from the evidence beyond a reasonable doubt that the defendant, either alone or acting with others, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without an adequate cause, and with intent to kill, did shoot with a gun, and thereby kill J.B. Grubbs, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period not less than five years." It is insisted that this charge does not even tell the jury that the act must have been unlawful, and omitted to tell them that it must have been done with implied malice. That is, it simply instructs the jury, if appellant in a sudden transport of passion, aroused without an adequate cause, with intent to kill, did shoot and kill deceased, he would be guilty of murder in the second degree. It is urged that this definition is entirely consistent with a lawful killing in self-defense. In this regard we are cited to a number of authorities, which are invoked to sustain appellant's contention. In Harrison v. State, 83 S.W. Rep., 703, there was no charge on manslaughter and adequate cause was nowhere defined. In Ray v. State, 81 S.W. Rep., 737, there was no charge on manslaughter and adequate cause was not defined, and the court found other vices in the charge. *251 In Spivey v. State, 77 S.W. Rep., 444, the conviction was for murder in the first degree, and the court held that the charge was so framed, as that the jury might believe, if he did not act under sudden passion they could not convict him of murder in the second degree, but were bound to find him guilty of murder in the first degree. It was further held, that the reasonable doubt was shifted and also that no charge was given on manslaughter, from which the jury might find the definition of adequate cause. In Pollard v. State, 73 S.W. Rep., 953, there was no charge on manslaughter and no definition of adequate cause, and it was held in a prosecution for murder, where the court charged the jury that defendant would be guilty of murder in the second degree, if he shot deceased in a sudden transport of passion, aroused without adequate cause, in such case it was error not to give a charge on manslaughter, defining adequate cause. It is not necessary to review the other cases cited. So far as we have been able to discover, none of them are any more in point than those reviewed. Here there was a charge on manslaughter, and adequate cause defined, and immediately following the charge complained of, the court gave this charge: "If you believe from the evidence beyond a reasonable doubt that the defendant with a deadly weapon, in a sudden transport of passion, aroused by an adequate cause, as the same has hereinbefore been defined, did unlawfully shoot with a gun, and thereby kill J.B. Grubbs, deceased, as charged in the indictment, then you will find defendant guilty of manslaughter, and assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than five. Now, it occurs to us that while it may be conceded that the charge in question should have been more full and explicit, yet that the jury in considering the definitions given of murder on implied malice and manslaughter could not have been misled. In this connection it may be observed that the court not only gave a charge on self-defense, which authorized the jury to acquit, if they believed the officer first assaulted appellant's mother, and from his (appellant's) standpoint put her in danger of life or serious bodily harm, he was authorized to slay deceased regardless of any conspiracy. Furthermore, appellant's requested instruction was given to wit: "You are charged that even though you may find from the evidence that there had been a conspiracy between the defendants and others to resist the officers, and you further find from the evidence that the killing was not done in furtherance of such conspiracy, but was done by defendant in the necessary defense of his mother, under the law as given you in charge, then you will acquit the defendant." With all these charges before the jury they found appellant guilty of murder in the second degree. Murder in the second degree had been defined by the court and a full definition given of implied malice. It is said, however, that the jury were not even told that the killing must be unlawful. They were told that, "if the killing was upon passion aroused without adequate cause, etc." If the killing was upon passion, and this passion was not even aroused *252 by adequate cause, which was defined by the court in the charge on manslaughter, it was necessarily unlawful, and the jury could not have confused this charge with either the charge on manslaughter or self-defense to the detriment of appellant. The testimony amply authorized them to find appellant guilty of murder in the second degree.
As to the charge on reasonable doubt, that was sufficiently presented by the court. A charge was also given the jury applying the reasonable doubt as between the degrees of murder and manslaughter. This was sufficient. It is not necessary to discuss other matters suggested and ably argued in appellant's brief, as they were reviewed in the original opinion.
Motion for rehearing is accordingly overruled.
Overruled.