Hurt, Judge.
This is a conviction for murder of the first degree, with the death penalty.
At the May term, 1887, of the district court of La Salle county, appellant was indicted for the murder of C. B. McKinney. On the thirteenth day of May, 1887, the court of its own motion made an order, changing the venue of the case to the district court of Bexar county. When this order was made» appellant objected to the case being sent to Bexar, that county being out of that judicial district. The learned judge filed reasons for sending the case out of his district; which reasons are quite satisfactory. (See art. 576, Code Crim Proc.)
On the trial the State, over objection, proved by S. Y. Edwards that, about two or three weeks before McKinney was killed, defendant McCoy told the witness, in the presence of others, in Butler’s saloon, in Cotulla, La Salle county, that if C. B. McKinney ever came to Twohig he had better come shooting, as he intended to kill him, etc. Counsel for appellant objected because these threats did not tend to prove appellant a principal actor in the murder of McKinne'y, or to show a conspiracy with Bud Crenshaw to kill him, the fact being that Crenshaw was the actual perpetrator of the crime.
Appellant was present when Crenshaw killed deceased, and these threats were introduced as cogent facts in corroboration of the attending circumstances which established that there was not only a conspiracy to murder deceased, but also that Crenshaw and appellant acted in concert in the killing of McKinney. These observations apply to the competency of the [432]*432testimony of the witness Gallaway. That Gallaway was an accessory is no objection to the competency of this testimony.
Upon cross examination of the witness Gallaway, counsel for appellant asked him: “ Were you not a witness in behalf of Simpson De Spain, a nephew of the defendant, when De Spain was tried for murdering a Mexican, and did you not voluntarily testify in behalf of De Spain; and, after you charged Dow White with raping your daughter, did you not endeavor to get this defendant, Jim McCoy, to procure false testimony against said Dow White, which he refused to do?” Counsel for the State objected because of irrelevancy. The objection was sustained and appellant reserved a bill.
“A witness can not ward off answering a question material to the issue on the ground that it imputes disgrace to himself, if such disgrace does not amount to crimination.” This is the doctrine as stated by Wharton. (Crim. Ev., sec., 473.) “A witness may, upon cross examination, be asked whether he has been in jail, in the penitentiary, or State prison, or any other that would tend to impair his credibility.” The facts proposed to be proved by this witness not being material to any issue in the case, the court acted properly in excluding them.
When Edwards related the threats, etc., made by the appellant, his counsel moved to postpone the trial because surprised by this testimony. It appears that Edwards had testified before the examining court, but had not mentioned these threats. He states that these threats were made in the presence of several persons; naming them. The threats were that in the presence of Foster Cope, Geo. Salmon and Tom Gerdner, at Cotulla, defendant told the witness Edwards that if McKinney ever came to Cotulla he had better get off the train shooting or he would never get away alive. In this there is no threat in terms to kill deceased.
How appellant moved to postpone to procure the attendance of Cope, Salmon and Gerdner to prove that they “were never present at the time when he, defendant, threatened to kill deceased,- or said if he, deceased, ever came to Tivohig he had better get off the train shooting.” Edwards swears that defendant said if McKinney came to Cotulla, etc. Appellant swears that he could prove by Cope, Salmon and Gerdner that defendant never said that if McKinney came to Twohig, etc. Edwards did not swear that defendant stated to him that if [433]*433McKinney should come to Twohig he had better get off the train shooting. Hence what appellant proposed to prove by Cope, Salmon and Gerdner might be true and still Edwards would not be contradicted or impeached in any manner. There was no error in refusing to postpone.
The court did not err in refusing to charge the law of murder of the second degree. Crenshaw killed McKinney, and if appellant is criminally responsible at all for the homicide, the grade of the offense under the facts is not short of murder of the first degree.
At the request of appellant the court gave this charge to the jury:
“The defendant asks the court to charge the jury that before you are authorized to find defendant guilty, you must believe from the evidence, and the evidence alone, and beyond a reasonable doubt, that the defendant either shot and killed the deceased, C. B. McKinney, or was present acting with some one else in the killing of McKinney. Therefore, if you find from the evidence that one Bud Crenshaw shot and killed C. B. McKinney, and that such killing was with express malice as defined in the general charge, and that immediately afterwards the defendant shot at, and shot, S. V. Edwards, and that this was the same time and place of the shooting of deceased, McKinney, and that the defendant did not shoot at C. B. McKinney, or offer any violence towards the deceased, then, before you would be authorized to find this defendant guilty, you must believe from the evidence, beyond a reasonable doubt, either that this defendant and Bud Crenshaw had previously entered into an agreement to kill the deceased, C. B. McKinney, and the deceased was killed in pursuance of such agreement, while the defendant was there present, or that Bud Crenshaw shot and killed McKinney, and that the acts of the defendant were enacted for the purpose of aiding or abetting the said Crenshaw in the killing of said McKinney. And if you should find from the evidence that one Bud Crenshaw shot and killed the deceased, and that all that was then done by the defendant was to shoot S. V. Edwards, then before you could find this defendant guilty you must find from the evidence, beyond a reasonable doubt, that the shooting of Edwards was done for the purpose of aiding or abetting said Crenshaw in the killing [434]*434of C. B. McKinney, before you would be authorized to find the defendant guilty.
“J. M. Eokford,
“Teel & Haltom.
“The foregoing charge is given in subordination to the general charge regarding principals.
'Geo. H. Noonan, “Judge.”
There was no objection at the time to the qualification, viz: “ The foregoing charge is given in subordination to the general charge regarding principals,”—the objection being urged first on the motion for a new trial. This being the ease, was the qualification calculated to prejudice the case of appellant?
In passing upon the question of injury vel non, or probable injury resulting from a positive error or omission in the charge, the whole record must be looked to: 1. The charge as a whole; 2. The statement of facts. The learned judge, in the charge already given, had clearly and concisely hinged appellant’s guilt upon the fact as to whether he was present and, knowing the unlawful intent of Crenshaw, aided and encouraged him in the killing, or whether the appellant had advised or agreed to the offense and was present when the same was committed.
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Hurt, Judge.
This is a conviction for murder of the first degree, with the death penalty.
At the May term, 1887, of the district court of La Salle county, appellant was indicted for the murder of C. B. McKinney. On the thirteenth day of May, 1887, the court of its own motion made an order, changing the venue of the case to the district court of Bexar county. When this order was made» appellant objected to the case being sent to Bexar, that county being out of that judicial district. The learned judge filed reasons for sending the case out of his district; which reasons are quite satisfactory. (See art. 576, Code Crim Proc.)
On the trial the State, over objection, proved by S. Y. Edwards that, about two or three weeks before McKinney was killed, defendant McCoy told the witness, in the presence of others, in Butler’s saloon, in Cotulla, La Salle county, that if C. B. McKinney ever came to Twohig he had better come shooting, as he intended to kill him, etc. Counsel for appellant objected because these threats did not tend to prove appellant a principal actor in the murder of McKinne'y, or to show a conspiracy with Bud Crenshaw to kill him, the fact being that Crenshaw was the actual perpetrator of the crime.
Appellant was present when Crenshaw killed deceased, and these threats were introduced as cogent facts in corroboration of the attending circumstances which established that there was not only a conspiracy to murder deceased, but also that Crenshaw and appellant acted in concert in the killing of McKinney. These observations apply to the competency of the [432]*432testimony of the witness Gallaway. That Gallaway was an accessory is no objection to the competency of this testimony.
Upon cross examination of the witness Gallaway, counsel for appellant asked him: “ Were you not a witness in behalf of Simpson De Spain, a nephew of the defendant, when De Spain was tried for murdering a Mexican, and did you not voluntarily testify in behalf of De Spain; and, after you charged Dow White with raping your daughter, did you not endeavor to get this defendant, Jim McCoy, to procure false testimony against said Dow White, which he refused to do?” Counsel for the State objected because of irrelevancy. The objection was sustained and appellant reserved a bill.
“A witness can not ward off answering a question material to the issue on the ground that it imputes disgrace to himself, if such disgrace does not amount to crimination.” This is the doctrine as stated by Wharton. (Crim. Ev., sec., 473.) “A witness may, upon cross examination, be asked whether he has been in jail, in the penitentiary, or State prison, or any other that would tend to impair his credibility.” The facts proposed to be proved by this witness not being material to any issue in the case, the court acted properly in excluding them.
When Edwards related the threats, etc., made by the appellant, his counsel moved to postpone the trial because surprised by this testimony. It appears that Edwards had testified before the examining court, but had not mentioned these threats. He states that these threats were made in the presence of several persons; naming them. The threats were that in the presence of Foster Cope, Geo. Salmon and Tom Gerdner, at Cotulla, defendant told the witness Edwards that if McKinney ever came to Cotulla he had better get off the train shooting or he would never get away alive. In this there is no threat in terms to kill deceased.
How appellant moved to postpone to procure the attendance of Cope, Salmon and Gerdner to prove that they “were never present at the time when he, defendant, threatened to kill deceased,- or said if he, deceased, ever came to Tivohig he had better get off the train shooting.” Edwards swears that defendant said if McKinney came to Cotulla, etc. Appellant swears that he could prove by Cope, Salmon and Gerdner that defendant never said that if McKinney came to Twohig, etc. Edwards did not swear that defendant stated to him that if [433]*433McKinney should come to Twohig he had better get off the train shooting. Hence what appellant proposed to prove by Cope, Salmon and Gerdner might be true and still Edwards would not be contradicted or impeached in any manner. There was no error in refusing to postpone.
The court did not err in refusing to charge the law of murder of the second degree. Crenshaw killed McKinney, and if appellant is criminally responsible at all for the homicide, the grade of the offense under the facts is not short of murder of the first degree.
At the request of appellant the court gave this charge to the jury:
“The defendant asks the court to charge the jury that before you are authorized to find defendant guilty, you must believe from the evidence, and the evidence alone, and beyond a reasonable doubt, that the defendant either shot and killed the deceased, C. B. McKinney, or was present acting with some one else in the killing of McKinney. Therefore, if you find from the evidence that one Bud Crenshaw shot and killed C. B. McKinney, and that such killing was with express malice as defined in the general charge, and that immediately afterwards the defendant shot at, and shot, S. V. Edwards, and that this was the same time and place of the shooting of deceased, McKinney, and that the defendant did not shoot at C. B. McKinney, or offer any violence towards the deceased, then, before you would be authorized to find this defendant guilty, you must believe from the evidence, beyond a reasonable doubt, either that this defendant and Bud Crenshaw had previously entered into an agreement to kill the deceased, C. B. McKinney, and the deceased was killed in pursuance of such agreement, while the defendant was there present, or that Bud Crenshaw shot and killed McKinney, and that the acts of the defendant were enacted for the purpose of aiding or abetting the said Crenshaw in the killing of said McKinney. And if you should find from the evidence that one Bud Crenshaw shot and killed the deceased, and that all that was then done by the defendant was to shoot S. V. Edwards, then before you could find this defendant guilty you must find from the evidence, beyond a reasonable doubt, that the shooting of Edwards was done for the purpose of aiding or abetting said Crenshaw in the killing [434]*434of C. B. McKinney, before you would be authorized to find the defendant guilty.
“J. M. Eokford,
“Teel & Haltom.
“The foregoing charge is given in subordination to the general charge regarding principals.
'Geo. H. Noonan, “Judge.”
There was no objection at the time to the qualification, viz: “ The foregoing charge is given in subordination to the general charge regarding principals,”—the objection being urged first on the motion for a new trial. This being the ease, was the qualification calculated to prejudice the case of appellant?
In passing upon the question of injury vel non, or probable injury resulting from a positive error or omission in the charge, the whole record must be looked to: 1. The charge as a whole; 2. The statement of facts. The learned judge, in the charge already given, had clearly and concisely hinged appellant’s guilt upon the fact as to whether he was present and, knowing the unlawful intent of Crenshaw, aided and encouraged him in the killing, or whether the appellant had advised or agreed to the offense and was present when the same was committed.
Appellant’s requested charge, above, is predicated upon the theory that Crenshaw shot and killed McKinney, unaided by him in any manner. That the killing of McKinney was a distinct transaction from that between appellant and Edwards ; that, if this theory of the case is not shown to be true, it is left in doubt, and should have been submitted to the jury in a clear, simple and affirmative charge, without qualification, or being subordinate to any other charge. This is a strong position and if sustained by the evidence, or the weakness. of the State’s case, should be ground for a reversal of the judgment.
As Crenshaw killed McKinney, it devolved upon the prosecution to prove beyond a reasonable doubt: 1, that Crenshaw and appellant acted together in the killing of McKinney; or, 2, that appellant was present; that he knew of the purpose of Crenshaw to kill deceased, and with this knowledge he aided [435]*435by acts or encouraged by words or gestures Crenshaw in the commission of the murder; or, 3, that Crenshaw and appellant had agreed with each other to kill McKinney, and that appellant was present when Crenshaw shot and killed the deceased. To convict, one of these propositions must be shown beyond a reasonable doubt, and if from the weakness of the testimony relied upon to establish these propositions there is a shade of doubt as to the existence of the one most strongly supported by the State’s testimony, then there might have been injury to the rights of appellant by the qualification appended to the charge under discussion. We must therefore look to the facts.
Opinion delivered February 20, 1889.
Looking to the facts bearing upon this question, the most shadowy, gauzy veil of a doubt does not remain. Our judgment is perfectly clear and satisfied beyond any sort of doubt or misgiving as to the truth of each of the propositions, namely, that the appellant and Crenshaw acted together in the murder of C. B. McKinney; that it was thoroughly agreed between them before the deceased and Edwards reached appellant’s house that McKinney should be killed. Each knew minutely the part to be performed by him, and executed it with precision and fatally to deceased.
, Under this state of case, if the learned judge had refused to submit to the jury the requested instructions (those given with qualification), in the absence of exceptions for the omission or refusal, we would not be warranted in reversing the judgment. Other objections were made to the charge in the motion for new trial, but we are of opinion that none are well taken.
If correct in the above observations as to the facts of this case, it is unnecessary for us to discuss the sufficiency of the evidence to support the conviction.
Appellant has been awarded a just, cautious and fair trial. His triers have convicted him of one of the most heinous crimes known to our laws, inflicting upon him the most terrible punishment. While this is true, a moment’s reflection, carrying him back to the scene of the deliberate, bloody assassination of 0. B. McKinney, will convince him that he is the author of his present calamities and fearful doom.
Finding no error in the judgment, it is affirmed.
Affirmed„