White, Presiding Judge.
Though appellant has been convicted upon an indictment charging him alone with the murder of Lewis Rhiden, the testimony shows that several other parties were connected with and implicated in the killing. There is no positive testimony identifying the party who actually fired the [244]*244fatal shot, and whilst all the State’s witnesses testify to the personal presence of this defendant, and place him in position and surround him with circumstances that lead almost irresistably to the conviction that with his own hand he committed the murder, he, on the other hand, has proven by the positive testimony of his principal witness that he was not only not present, but that he was so distant he could not have heard the fatal shot by which the murder was committed. This witness was a white man—all the other parties present at the time, witnesses and participants, being negroes. The murder was committed at night, sometime after dark.
Inasmuch as the most serious questions arising upon this appeal relate to the correctness and sufficiency of the charge of the court to the jury with reference to conspirators and principal offenders, it may be well to state the substance of' the uncontradicted and undisputed facts showing specifically the de_ fendant’s relation to the homicide. It appears that appellant’s infant child had been taken'by some one and spirited away— when, and under what circumstances does not appear, nor does it appear what supposed connection, if any, deceased had with the abduction and concealment of the child. The homicide was committed on Monday night. On the previous Saturday night defendant went to the house of deceased with a gun, after the family had gone to bed, inquired for deceased, and, when told he was not there, said he intended to kill him. On Monday de~ fendant was at the house of deceased three times; on the first occasion early in the morning, and when told that deceased was not there he told the family to tell deceased that he intended to kill him that night. About an hour by sun he again appeared at the house, and being told that deceased had not returned, said: “Tell Lewis Rhiden that he had better get his gun ready, for me and George Nixon, Aaron Nixon and Bill Evans are coming here to-night and kill him or hurt him d—d badly.’ Sometime after this the defendant passed deceased’s house, and the latter being at home the defendant asked him to help him hunt his child, when deceased said that he was sick, but if defendant would wait till morning he would go with him to hunt his wife and child. As defendant was leaving he said that George Nixon, Aaron Nixon and Bill Evans were going with him. That same evening all the last named parties and the defendant met at the house of Jim Phillips, where they were preparing arms and amunition, and about dark started off towards [245]*245the house of deceased, and when George Nixon said “boys this is a mighty particular matter we are going into,” defendant said “yes, come on, the one that crawfishes out of this business we will all turn on him.” Defendant’s witness, the white man, Jim Buie, says that some negroes came to Mit Buie’s, where he and defendant were, and called defendant out and talked with him just before the witness and defendant were about to start off on horseback to hunt for defendant’s child, but that he does not know whether they were George Nixon, Aaron Nixon and Bill Evans or not—the witness was near sighted and could not see well at a distance—but that these same parties, whoever they were, were at the house of deceased when he and defendant passed the house going to Ned Wagoner’s, six miles distant, in search of the child. There is but little, if any, conflict in the testimony up to this point.
The State’s witnesses say that, just before the killing, George Nixon came to the fence in front of the house and called deceased out, and that these two were sitting on the fence talking when Jim Buie, Bill Evans and defendant passed by, all armed, and defendant told deceased he wanted to see him, and deceased replied, “I want to see you, too.” That, after having ■gone about forty yards the parties stopped in the road and 'defendant called to deceased to come down there. That deceased started but was shot by some one of the parties in the road; that is, by Jim Buie, Bill Evans, or defendant.
Defendant’s witness, Jim Buie, positively denies that he and defendant either said anything to deceased or any one else as they passed; denies that they stopped and witnessed the shooting; denies that they even heard the report of the gun which -did the killing; and further, testified that he, the witness, did not hear of the killing until the next morning; that defendant was with him all the time; that they went six miles to Wagoner’s and returned back to Plummer’s, within a mile of the place of the homicide, together. There is other evidence which fends to show that the shooting was done from a fence corner inside the field, and by Aaron Nixon, who, it will be observed, was not seen with the other parties at the house of deceased •about the time of the shooting.
From the facts we have detailed we think it is reasonably apparent that a conspiracy was deliberately entered into between Aaron Nixon, George Nixon, Bill Evans and this defendant to take the life of Lewis Rhiden. It is also equally ap[246]*246parent that such conspiracy was formed in the interest and at the instance of this defendant. He, it seems, had determined and repeatedly declared his intention to kill deceased. He is the only one of the parties who had any such motive, or who had ever declared such intention. In entering into the conspiracy and participating to the extent they or either of them went in its consummation, the other parties appear to have been actuated solely by their friendship for defendant. He seems to have been the very head and front of the conspiracy, and, to say the least of it, was the most active leader and participant up to and within but a short time of its consummation. If there is any evidence of an abandonment upon his part, it consists in the fact, if it be a fact, that he did not stop to consummate or be present at its consummation, but went on with Jim Buie out of sight and hearing of the deed, and his going on with Buie, instead of being evidence of abandonment, may be equally as strong evidence to convict him as a principal in the-murder.
Suppose Buie to have been all that is claimed for him by the-defense—an upright, truthful, honest, Christian citizen, who would be so far from engaging in the conspiracy himself as that he would do all in his power to prevent its accomplishment, and that this fact was known to defendant and his confederates, what more reasonable and natural than that they should arrange to have him absent at the denouement, so that he should not be able to prevent nor be able to testify against the parties engaged in it, and what more plausible reason could be had to get him away than for defendant to urge him on and accompany him to Wagoner’s in pretended search of the child. In furtherance of the conspiracy it may have become- necessary that appellant should have taken Buie away from the scene in order to conceal the crime and its perpetrators and the fact of his own complicity in it. If so, then he was a principal, though not present at its commission.
“All persons are principals who are guilty of acting together in the commission of an offense.” (Penal Code, art. 74.) Hot alone those who are present, but all who are acting together-in its commission. Actual presence is not
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White, Presiding Judge.
Though appellant has been convicted upon an indictment charging him alone with the murder of Lewis Rhiden, the testimony shows that several other parties were connected with and implicated in the killing. There is no positive testimony identifying the party who actually fired the [244]*244fatal shot, and whilst all the State’s witnesses testify to the personal presence of this defendant, and place him in position and surround him with circumstances that lead almost irresistably to the conviction that with his own hand he committed the murder, he, on the other hand, has proven by the positive testimony of his principal witness that he was not only not present, but that he was so distant he could not have heard the fatal shot by which the murder was committed. This witness was a white man—all the other parties present at the time, witnesses and participants, being negroes. The murder was committed at night, sometime after dark.
Inasmuch as the most serious questions arising upon this appeal relate to the correctness and sufficiency of the charge of the court to the jury with reference to conspirators and principal offenders, it may be well to state the substance of' the uncontradicted and undisputed facts showing specifically the de_ fendant’s relation to the homicide. It appears that appellant’s infant child had been taken'by some one and spirited away— when, and under what circumstances does not appear, nor does it appear what supposed connection, if any, deceased had with the abduction and concealment of the child. The homicide was committed on Monday night. On the previous Saturday night defendant went to the house of deceased with a gun, after the family had gone to bed, inquired for deceased, and, when told he was not there, said he intended to kill him. On Monday de~ fendant was at the house of deceased three times; on the first occasion early in the morning, and when told that deceased was not there he told the family to tell deceased that he intended to kill him that night. About an hour by sun he again appeared at the house, and being told that deceased had not returned, said: “Tell Lewis Rhiden that he had better get his gun ready, for me and George Nixon, Aaron Nixon and Bill Evans are coming here to-night and kill him or hurt him d—d badly.’ Sometime after this the defendant passed deceased’s house, and the latter being at home the defendant asked him to help him hunt his child, when deceased said that he was sick, but if defendant would wait till morning he would go with him to hunt his wife and child. As defendant was leaving he said that George Nixon, Aaron Nixon and Bill Evans were going with him. That same evening all the last named parties and the defendant met at the house of Jim Phillips, where they were preparing arms and amunition, and about dark started off towards [245]*245the house of deceased, and when George Nixon said “boys this is a mighty particular matter we are going into,” defendant said “yes, come on, the one that crawfishes out of this business we will all turn on him.” Defendant’s witness, the white man, Jim Buie, says that some negroes came to Mit Buie’s, where he and defendant were, and called defendant out and talked with him just before the witness and defendant were about to start off on horseback to hunt for defendant’s child, but that he does not know whether they were George Nixon, Aaron Nixon and Bill Evans or not—the witness was near sighted and could not see well at a distance—but that these same parties, whoever they were, were at the house of deceased when he and defendant passed the house going to Ned Wagoner’s, six miles distant, in search of the child. There is but little, if any, conflict in the testimony up to this point.
The State’s witnesses say that, just before the killing, George Nixon came to the fence in front of the house and called deceased out, and that these two were sitting on the fence talking when Jim Buie, Bill Evans and defendant passed by, all armed, and defendant told deceased he wanted to see him, and deceased replied, “I want to see you, too.” That, after having ■gone about forty yards the parties stopped in the road and 'defendant called to deceased to come down there. That deceased started but was shot by some one of the parties in the road; that is, by Jim Buie, Bill Evans, or defendant.
Defendant’s witness, Jim Buie, positively denies that he and defendant either said anything to deceased or any one else as they passed; denies that they stopped and witnessed the shooting; denies that they even heard the report of the gun which -did the killing; and further, testified that he, the witness, did not hear of the killing until the next morning; that defendant was with him all the time; that they went six miles to Wagoner’s and returned back to Plummer’s, within a mile of the place of the homicide, together. There is other evidence which fends to show that the shooting was done from a fence corner inside the field, and by Aaron Nixon, who, it will be observed, was not seen with the other parties at the house of deceased •about the time of the shooting.
From the facts we have detailed we think it is reasonably apparent that a conspiracy was deliberately entered into between Aaron Nixon, George Nixon, Bill Evans and this defendant to take the life of Lewis Rhiden. It is also equally ap[246]*246parent that such conspiracy was formed in the interest and at the instance of this defendant. He, it seems, had determined and repeatedly declared his intention to kill deceased. He is the only one of the parties who had any such motive, or who had ever declared such intention. In entering into the conspiracy and participating to the extent they or either of them went in its consummation, the other parties appear to have been actuated solely by their friendship for defendant. He seems to have been the very head and front of the conspiracy, and, to say the least of it, was the most active leader and participant up to and within but a short time of its consummation. If there is any evidence of an abandonment upon his part, it consists in the fact, if it be a fact, that he did not stop to consummate or be present at its consummation, but went on with Jim Buie out of sight and hearing of the deed, and his going on with Buie, instead of being evidence of abandonment, may be equally as strong evidence to convict him as a principal in the-murder.
Suppose Buie to have been all that is claimed for him by the-defense—an upright, truthful, honest, Christian citizen, who would be so far from engaging in the conspiracy himself as that he would do all in his power to prevent its accomplishment, and that this fact was known to defendant and his confederates, what more reasonable and natural than that they should arrange to have him absent at the denouement, so that he should not be able to prevent nor be able to testify against the parties engaged in it, and what more plausible reason could be had to get him away than for defendant to urge him on and accompany him to Wagoner’s in pretended search of the child. In furtherance of the conspiracy it may have become- necessary that appellant should have taken Buie away from the scene in order to conceal the crime and its perpetrators and the fact of his own complicity in it. If so, then he was a principal, though not present at its commission.
“All persons are principals who are guilty of acting together in the commission of an offense.” (Penal Code, art. 74.) Hot alone those who are present, but all who are acting together-in its commission. Actual presence is not necessary if at the time-of commission the absent party is doing his part in connection with and furtherance of the common design. (Willson’s Crim. Stats., sec. 142.) Again, it is expressly provided by statute that “all persons who shall engage in procuring aid, arms or-[247]*247means of any kind to assist in the commission of an offense while others are executing the unlawful act, and all persons who endeavor at the time of the commission of the offense to secure the safety or concealment of the offenders, are principals, and may be convicted, and. punished as ouch.” (Penal Code, art. 70.)
It is also a familiar general rule that when several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance or in prosecution of the common design for which they combine. (Bowers v. The State, 24 Texas Ct. App., 543; Kirby v. The State, 24 Texas Ct. App., 14; Williams v. The State, Ala., 9 Crim. Law Mag.,, 480; Willson’s Crim. Stats., sec. 151.)
So much for the State’s theory of the case, and it may suffice to say that the charge of the court was substantially correct in presenting the law applicable to this theory.
But, on the other hand, there were two theories insisted upon for the defense, first, abandonment of the conspiracy by defendant, and, second, that, having abandoned the former design to kill Rhiden, all the inculpatory acts proven against appellant prior thereto, if he could be held liable for them at all, in any manner after such abandonment, or if, without abandonment, he was liable for them, he not being present at nor acting with his co-conspirators in the killing, he would be liable as an accomplice (Penal Code, art. 79), and not as a principal, and if as an accomplice, that then, he could not be convicted under the indictment, which charged him alone as a principal offender. Special instructions covering- these phases of the defense were requested for defendant and refused by the court, and bills of exceptions saved to the refusal.
It was error for the court to refuse these instructions, because, whatever might have been the opinion of the court as to the truth or merit of the defenses, they presented matters of fact supported to some extent at least by the evidence. “In all criminal cases the jury are the exclusive judges of the facts proved and of the weight to be given to the testimony,” etc. (Code Crim. Proc., Art. 728.) And it is not for the court to ignore matters of fact submitted by a defendant, by refusing to submit to the jury the law applicable thereto. “Every theory of the case presented by the evidence, whether strongly or weakly supported thereby, demands instructions to [248]*248the jury directly and pertinently applied thereto, and this rule applies to every theory within the scope of the indictment which the evidence tends to establish, whether favorable to the State or the defendant.” (Willson’s Crim. Stats., Sec. 2338.)
Opinion delivered October 24, 1888.
When an indictment for felony charges the defendant as a principal offender under the code, he can not be convicted as an accomplice. (McKean v. The State, 7 Texas Ct. App., 631.) The distinction between these two different characters of offenders has been so often defined that it is only necessary to refer to such later decisions upon the subject as Smith v. The State, 21 Texas Ct. App., 108, Watson v. The State, Id., 598, Collins & Lindly v. The State, 24 Texas Ct. App., 142, and Blair v. The State, Id. 626.
Another refused instruction was that “the burden of proof never shifts from the State to the defendant, but is upon the State throughout.” This proposition is elementary and has but few and rare exceptions. (Black v. The State, 1 Texas Ct. App., 368.)
Several other errors are complained of, but, inasmuch as they may not arise at another trial, we refrain from discussing them. Because of errors in the charge of the court, pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.