OPINION
DOUGLAS, Judge.
This is an appeal from convictions in a joint trial for murder. The punishments were assessed by the jury with Israel Morales receiving thirty years, Brijido Pena, twenty years and Juan Morales, ten years.
The facts are undisputed that Israel Morales killed Juan Ayala by stabbing him with a knife. It is contended that the evidence is insufficient to show that Brijido Pena and Juan Morales were principals and that the murder was with malice.
The record reflects that the appellants Israel and Juan Morales are brothers, and they with another brother Esequiel Morales and the appellant Brijido Pena were riding together in an automobile around Weslaco. At approximately 7:30 p. m., some thirty minutes before the killing they drove to a corner where three boys were singing some Spanish songs and made some remarks in an apparent attempt to provoke a fight. When the singers did not take offense, the appellants drove away.
At approximately 8:00 p. m., Juan Ayala (the deceased), an eighteen-year-old boy, was standing in a street talking to Maricela Rodriquez, his fourteen-year-old girlfriend, and her thirteen-year-old sister, Elma, when appellants drove by and yelled something at Ayala and the girls. Some ten minutes later they approached again and one of them yelled, "Hey, you with the yellow shirttail,” to Maricela who was wearing a yellow shirt. Appellants then drove down the street and two of them got out and walked with two other girls for some six blocks.
Later the appellants returned to Juan Ayala and the Rodriquez girls, and one of the occupants of the car stated, “You have too many girls,” and all of them started to alight from the automobile. Ayala said, “Look, you guys, this is my girlfriend and this is my sister.” One of the appellants said, “I don’t care,” and the three of them started an unprovoked attack upon Ayala. Brijido Pena kicked and Juan Morales hit Ayala with his fists. Israel Morales stabbed Ayala with a fishing knife which had a three and a half inch blade, causing a puncture in the right wrist and one in the heart from which he died.1
Maricela went to call the police and the appellants fled.
The officers did not learn the identity of the appellants until several days later. Appellants’ automobile in which the group had been riding was found in Reynosa, Tamps., Mexico, where it was being prepared to be painted another color.
Israel Morales testified that he stabbed Ayala with the fishing knife. The other [296]*296appellants did not testify. Wives of two of the appellants testified at the penalty stage of the trial that their husbands were good providers and had not been convicted of other offenses.
In the first ground of error, it is contended that the trial court erred in overruling the motions of Brijido Pena and Juan Morales for a severance to be tried separately from Israel Morales. Each alleged that a joint trial would be extremely prejudicial, because the defenses would be conflicting, and that confessions made by each would, if admitted, be prejudicial. It was also alleged that the actions of Israel Morales were independent of the others, and that the degree of guilt, if any, of the defendants would be diverse.
Article 36.09, Vernon’s Ann.C.C.P., provides :
“Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.”
No statutory provision was violated because of the joint trial. No previous conviction against any of the appellants was offered in evidence. The allegation that their defenses were conflicting was not borne out by the record. The question of whether Israel Morales was acting independently of the others was a fact issue submitted to the jury. The jury found all three guilty.
The appellant Israel Morales testified that he killed Juan Ayala with the knife and apparently attempted to take all the blame for the killing.
The grounds for severance relied upon were addressed to the sound discretion of the trial judge. Thornton v. State, Tex.Cr.App., 451 S.W.2d 898.
No abuse of discretion has been shown. The first ground of error is overruled.
In the second ground of error, complaint is made that the court refused to have a separate hearing before admitting into evidence oral confessions of the appellants.
No confession of either of the appellants was introduced or offered into evidence over objection.
The following testimony was introduced without objection. An officer went to the home of Israel Morales and, upon finding that he was not there, stated that A. C. Gonzales, Chief of the Edinburg Police Department, wanted to talk to Israel. Sometime later Israel and Brijido Pena went to see Chief Gonzales. Gonzales told Israel that he wasvchecking on the car about which he had received some information. Israel told Officer Goiizales that he knew what he was talking about and that he was in the fight at Weslaco. Officer Gonzales told him not to say anything else and advised Israel about his right to remain silent and right to counsel by reading from a card. Israel said he understood his rights and then told the officer, “We did it,” and when asked what he meant he said, “The boy outside and me.”
Officer Gonzales testified that he also warned Brijido Pena. A justice of the peace testified that he also warned these two appellants about their rights.
[297]*297No request for a hearing on the volun-tariness of any confession was made until after the above testimony was introduced.2
It appears from the record that an officer found the knife as a result of a conversation with Israel Morales but no statement of Israel Morales was introduced.
If the court erred in admitting the testimony about the officer finding the knife, it was made harmless when Israel Morales testified that he stabbed and killed Ayala with the knife and that he and the others left, and he threw the knife into a canal (where it was found by the officers). He also testified that Pena tried to stop him from stabbing Ayala and that Juan Morales did not get out of the car. No objection to any of this testimony was made and nothing is presented for review. The second ground of error is overruled.
Complaint is made in the third ground of error that the court erred in charging the jury on the law of principals. It is contended that the court assumed a common plan or design in his instructions. Upon the law of principals, the court charged the jury as follows:
“All persons are principals who are guilty of acting together in the commission of an offense.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
DOUGLAS, Judge.
This is an appeal from convictions in a joint trial for murder. The punishments were assessed by the jury with Israel Morales receiving thirty years, Brijido Pena, twenty years and Juan Morales, ten years.
The facts are undisputed that Israel Morales killed Juan Ayala by stabbing him with a knife. It is contended that the evidence is insufficient to show that Brijido Pena and Juan Morales were principals and that the murder was with malice.
The record reflects that the appellants Israel and Juan Morales are brothers, and they with another brother Esequiel Morales and the appellant Brijido Pena were riding together in an automobile around Weslaco. At approximately 7:30 p. m., some thirty minutes before the killing they drove to a corner where three boys were singing some Spanish songs and made some remarks in an apparent attempt to provoke a fight. When the singers did not take offense, the appellants drove away.
At approximately 8:00 p. m., Juan Ayala (the deceased), an eighteen-year-old boy, was standing in a street talking to Maricela Rodriquez, his fourteen-year-old girlfriend, and her thirteen-year-old sister, Elma, when appellants drove by and yelled something at Ayala and the girls. Some ten minutes later they approached again and one of them yelled, "Hey, you with the yellow shirttail,” to Maricela who was wearing a yellow shirt. Appellants then drove down the street and two of them got out and walked with two other girls for some six blocks.
Later the appellants returned to Juan Ayala and the Rodriquez girls, and one of the occupants of the car stated, “You have too many girls,” and all of them started to alight from the automobile. Ayala said, “Look, you guys, this is my girlfriend and this is my sister.” One of the appellants said, “I don’t care,” and the three of them started an unprovoked attack upon Ayala. Brijido Pena kicked and Juan Morales hit Ayala with his fists. Israel Morales stabbed Ayala with a fishing knife which had a three and a half inch blade, causing a puncture in the right wrist and one in the heart from which he died.1
Maricela went to call the police and the appellants fled.
The officers did not learn the identity of the appellants until several days later. Appellants’ automobile in which the group had been riding was found in Reynosa, Tamps., Mexico, where it was being prepared to be painted another color.
Israel Morales testified that he stabbed Ayala with the fishing knife. The other [296]*296appellants did not testify. Wives of two of the appellants testified at the penalty stage of the trial that their husbands were good providers and had not been convicted of other offenses.
In the first ground of error, it is contended that the trial court erred in overruling the motions of Brijido Pena and Juan Morales for a severance to be tried separately from Israel Morales. Each alleged that a joint trial would be extremely prejudicial, because the defenses would be conflicting, and that confessions made by each would, if admitted, be prejudicial. It was also alleged that the actions of Israel Morales were independent of the others, and that the degree of guilt, if any, of the defendants would be diverse.
Article 36.09, Vernon’s Ann.C.C.P., provides :
“Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.”
No statutory provision was violated because of the joint trial. No previous conviction against any of the appellants was offered in evidence. The allegation that their defenses were conflicting was not borne out by the record. The question of whether Israel Morales was acting independently of the others was a fact issue submitted to the jury. The jury found all three guilty.
The appellant Israel Morales testified that he killed Juan Ayala with the knife and apparently attempted to take all the blame for the killing.
The grounds for severance relied upon were addressed to the sound discretion of the trial judge. Thornton v. State, Tex.Cr.App., 451 S.W.2d 898.
No abuse of discretion has been shown. The first ground of error is overruled.
In the second ground of error, complaint is made that the court refused to have a separate hearing before admitting into evidence oral confessions of the appellants.
No confession of either of the appellants was introduced or offered into evidence over objection.
The following testimony was introduced without objection. An officer went to the home of Israel Morales and, upon finding that he was not there, stated that A. C. Gonzales, Chief of the Edinburg Police Department, wanted to talk to Israel. Sometime later Israel and Brijido Pena went to see Chief Gonzales. Gonzales told Israel that he wasvchecking on the car about which he had received some information. Israel told Officer Goiizales that he knew what he was talking about and that he was in the fight at Weslaco. Officer Gonzales told him not to say anything else and advised Israel about his right to remain silent and right to counsel by reading from a card. Israel said he understood his rights and then told the officer, “We did it,” and when asked what he meant he said, “The boy outside and me.”
Officer Gonzales testified that he also warned Brijido Pena. A justice of the peace testified that he also warned these two appellants about their rights.
[297]*297No request for a hearing on the volun-tariness of any confession was made until after the above testimony was introduced.2
It appears from the record that an officer found the knife as a result of a conversation with Israel Morales but no statement of Israel Morales was introduced.
If the court erred in admitting the testimony about the officer finding the knife, it was made harmless when Israel Morales testified that he stabbed and killed Ayala with the knife and that he and the others left, and he threw the knife into a canal (where it was found by the officers). He also testified that Pena tried to stop him from stabbing Ayala and that Juan Morales did not get out of the car. No objection to any of this testimony was made and nothing is presented for review. The second ground of error is overruled.
Complaint is made in the third ground of error that the court erred in charging the jury on the law of principals. It is contended that the court assumed a common plan or design in his instructions. Upon the law of principals, the court charged the jury as follows:
“All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts, or encourage by words and gestures, those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders and may be prosecuted as such.
“You are further instructed that all persons who advise or agree to the commission of an offense and who are present when the same is committed are principal offenders whether such persons aid or not in the illegal act. Mere presence alone does not constitute one a principal.
“When two or more persons agree to commit an unlawful act, each is responsible as a principal, if present, for everything done by those who have entered into such common design as one of its probable and natural consequences and which might have been and should have been contemplated would result from the execution of the original design even though it was not intended as a part of the common plan.
V.
“Now if you find from the evidence beyond a reasonable doubt that ISRAEL MORALES and BRIJIDO PENA entered into a common plan and design to assault Juan Ayala and that in the execution or attempted execution of such assault, if any, ISRAEL MORALES on or about the 27th day of February, A. D. 1969, in the County of Hidalgo and State of Texas, voluntarily and with malice aforethought killed Juan Ayala by cutting and stabbing him with a knife, and that the Defendant BRIJIDO PENA was then and there present and acting together with the said ISRAEL MORALES in the execution or attempted execution of such assault, if any, and that the death of the said Juan Ayala followed immediately in the execution of such common design, if any, as one of its natural and probable consequences and the said death of Juan Ayala might have been and should have been foreseen by the said Defendant BRIJIDO PENA as one of the natural and probable consequences which would result from the [298]*298execution of said common design, if any, you will find the Defendant BRIJIDO PENA guilty of murder with malice aforethought.
“You are further instructed that if you find the foregoing facts beyond a reasonable doubt except that you find from the evidence, or have a reasonable doubt thereof, that in cutting and stabbing Juan Ayala the said ISRAEL MORALES was acting outside of the common design of ISRAEL MORALES and BRIJIDO PENA, and that BRIJIDO PENA had no knowledge of the intent of ISRAEL MORALES and had no complicity in the said cutting and stabbing, and that said killing was not a natural and probable consequence of the common design of ISRAEL MORALES and BRIJIDO PENA, then you will find the Defendant BRIJIDO PENA not guilty of murder with malice aforethought.”
The same charge was given concerning Juan Morales.
No written objection to the court’s charge as required by Article 36.14, V.A.C.C.P., appears in the record. Oral objections dictated to the court reporter appear in the transcription of the court reporter’s notes. This Court has held in many cases that where an oral objection to the charge is only dictated to the court reporter, nothing is presented for review. Cole v. State, Tex.Cr.App., 458 S.W.2d 195; Thayer v. State, Tex.Cr.App., 452 S.W.2d 496, and Seefurth v. State, Tex.Cr.App., 422 S.W.2d 931.
Appellant further contends that his requested charges numbered II, III and IV should have been given. The record does not show that these requested charges were presented to the court prior to the reading of the charge to the jury. The purpose of Articles 36.14 and 36.15, V.A.C.C.P., is to enable the trial judge to know in what respect a defendant regards a charge to be defective and to afford the judge an opportunity to make corrections before reading the charge to the jury.
Even if the objections or the special requested charges had been properly presented to the trial judge and had been overruled, no error would be shown. The third ground of error is overruled.
Complaint is made in the fourth ground of error that the court misdirected the jury on the “uniformity of guilt or innocence of all defendants.”
The record reflects that after the jury retired to deliberate at the guilt or innocence stage of the trial, they sent the following note which, omitting the formal parts, read as follows:
“ * * * Some of the jurors would like to know if it is possible to find one or more of the Defendants guilty of murder with malice and the others without malice. * * * ”
The jury was brought into the courtroom and the court gave the following written answer:
“Ladies and gentlemen of the jury, the answer to your question is in the negative.”
Appellant verbally objected that the answer should have been “Follow the charge of the court.” This answer is substantially the same instruction already given in the court’s charge.
Assuming that such objection is sufficient, it appears that the instruction of the trial court was correct. In the charge to the jury, the guilt of Pena, and Juan Morales was dependent upon their being found to have acted with Israel Morales under the law of principals. There is no contention or proof that Pena or Juan Morales actually struck the death blow. It follows that neither could be guilty of any offense other than that committed by Israel Morales. If he was guilty of murder with malice, and they were found to be principals to the offense, then they were also guilty of murder with malice. If Israel Morales had been found guilty of murder without malice, then the other two could [299]*299not have been found guilty of murder with malice under the law of principals. If all of them were to be found guilty there could have been no diversity in the degree of guilt. Those whose guilt depended upon their being principals would be guilty of the offense the jury found that Israel Morales had committed.
The fourth ground of error is overruled.
In the fifth ground of error, it is contended that the court should have permitted individual voir dire examination of the jury panel. Appellant recognizes that only in capital cases where the State has made it known it will seek the death penalty does a defendant have the right to a separate examination of each juror under Article 35.17-1, V.A.C.C.P., and Moore v. State, Tex.Cr.App., 424 S.W.2d 443.
The contention that an abuse of discretion has been shown is overruled and this ground of error is overruled.
In the sixth ground of error, it is contended that the court committed fundamental error in participating in questioning the jury panel on the voir dire examination.
No objection was made to the court’s examination of the panel. The questions and explanations by the court complained of have been examined and they were authorized. Enriquez v. State, Tex.Cr.App., 429 S.W.2d 141, and Ash v. State, Tex.Cr.App., 420 S.W.2d 703.
In ground of error number seven, complaint is made that the court permitted the State to use witnesses whose names had not been furnished the appellants.
The testimony of the district attorney shows that a list of the names of all the witnesses known to him were furnished counsel for appellants. He testified that two of the witnesses named were not available and the names of the two other witnesses were not known to him until the morning they testified. No abuse of discretion on the part of the trial court or error has been shown. See Bradley v. State, Tex.Cr.App., 450 S.W.2d 847.
Complaint is made in the eighth ground of error that the court erred in permitting the district attorney at the start of the trial to identify the appellants in the presence of the State’s witnesses during the questioning of the jury. The prosecutor asked the prospective jurors if they were acquainted with the appellants.
In a somewhat similar situation in Moore v. State, Tex.Cr.App., 424 S.W.2d 443, this Court said:
“We know of no law which prohibits a court from requiring that a defendant sit at the counsel table with his attorney during the trial. Nor do we know of any law which prohibits state’s counsel from pointing to a defendant in the courtroom and referring to his physical appearance in the presence of witnesses * * *. The motion is wholly without merit, * * ⅜ V
The eighth ground of error is overruled.
Lastly, it is contended that the evidence is insufficient and the court erred in refusing to dismiss the charges against Brijido Pena and Juan Morales.
The evidence heretofore set out shows that the three appellants participated in a joint attack upon the deceased. The court instructed the jury to acquit Pena and Juan Morales if they found that they did not know that Israel Morales intended to kill the deceased.
There was sufficient evidence for the jury to conclude that Pena and Juan Morales were guilty as principals. See Martinez v. State, 142 Tex.Cr.R. 313, 152 SW. 2d 369. See Brown v. State, 146 Tex.Cr.R. 602, 177 S.W.2d 64; Brothers v. State, 167 Tex.Cr.R. 521, 321 S.W.2d 311; Harris v. [300]*300State, Tex.Cr.App., 370 S.W.2d 886, and 4 Branch’s Ann.P.C.2d, Section 2242, p. 601.
There being no reversible error, the judgments are affirmed.