HURT, Judge.
Slade and Roberts were jointly indicted for the murder of Pleas White. A severance was had, and Slade was placed on trial, which resulted in a conviction for murder of the second degree, his punishment being fixed at confinement in the penitentiary for forty years. From this judgment Slade appeals and assigns numerous errors.
First assignment: “The court erred in overruling the motion for continuance. ’ ’ The evidence desired from Mrs. Ann Roberts was ‘ ‘ that she saw defendant when he arrived at Dave Roberts’, and that there was' no blood upon his shirt, and that Slade had changed his shirt at Dave Roberts’ house.” This is consistent with the theories of the State and of appellant, the State contending that the appellant changed his shirt at E. Z. Roberts’ house; and if this be so, there was no blood on appellant’s shirt when he reached Dave Roberts’.
Second: That there was error in admitting the testimony of Mrs. Ewing and J. A. Van Hoos. Van Hoos swore that appellant, on the day of the homicide, threatened to kill Jordan White, Billy Groves, and Tom Fowler. The objection being to the threats to kill other persons than deceased, viz., Jordan White, Groves and Fowler, let us suppose that appellant and Roberts intended to kill all of those persons, would the State not have the right to show this? Suppose, after such ■threats had been made, the appellant or Roberts had attempted to kill Jordan White, or Groves, or Fowler. Would not this be cogent evidence to show that the threats to kill deceased, Pleas White, were serious and not idle? The killing of all these persons being within the scope of the conspiracy, the State had the right to show the fact. ¡Nor can appellant complain because this evidence may tend to establish another offense. Mrs. Ewing swore that Roberts made like threats to her. This was after the threats were made to Van Hoos. The threats to Mrs. Ewing were made in the absence of appellant. Concede these facts to be true, the threats were admissible, though made in the absence of Slade, because a conspiracy to kill deceased had very clearly been proved, not only by the threats to Van Hoos, but by other circumstances tending strongly to show such conspiracy.
Fourth assignment: “There was error in refusing to give special charge ¡No. 4.” Appellant requested the court to charge: “When the admission or confession of a party is introduced in evidence by the State, then the whole of such admission or confession is to be taken together, and the State is bound by them, unless they are shown by the evidence [392]*392to be untrue; and unless the State has shown the statements of defendant as to how the killing took place to be untrue, you should acquit him.” This is an excerpt from the opinion in Pharr v. The State, 7 Texas Court of Appeals, 472. In the Pharr case the trial court had submitted to the jury two charges relating to the confessions or statements of the accused, the last being calculated to neutralize the first; the first being correct and the last wrong. The charge rejected in this case is in the language of the correct one in Pharr’s case. Now, it is not decided in the Pharr case that, though correct, such a charge must always be given, when requested, in every case in which the State introduces in evidence the admissions of the accused. This question was not before the court in the Pharr case. Under what circumstances must such a charge be given? This question is answered in Jones v. The State, ante, p. 20. When the State relies for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpating or mitigating matters, such a charge should be given. In this case the State did not rely upon confessions or admissions alone for conviction. These were introduced mainly for the purpose of impeaching the accused, who testified in the case. There was a large mass of evidence adduced by the State in rebuttal of these confessions and admissions.
Fifth assignment: “The court erred in refusing to give a special charge as follows: ‘You are instructed that should you find from the testimony, and so believe, that prior to the killing they had abandoned such formed design to kill the deceased, and that the deceased was afterward killed by the said E. Z. Roberts, and the defendant did no act at the time aiding, encouraging, or abetting the commission of the offense, he should only be held liable (if guilty at all) as an accomplice, and you can not find him guilty of that offense under this bill of indictment.’ ” There is no evidence of an abandonment of the design to kill deceased. Again, if appellant agreed to kill deceased he certainly was a principal, because it is absolutely certain that he was present at the homicide.
Sixth assignment: “The court erred in refusing to give a special charge as follows: ‘Upon the question of proof you are charged that the burden of proof never shifts from the State to the defendant, but is upon the State throughout. ’ ” In support of this assignment we are cited to quite a number of cases, but counsel for appellant rely mainly upon the opinion of this court in Black v. The State, 1 Texas Court of Appeals, 368. In that case the following charge was requested and refused:
“1. The accused must be presumed to be innocent until his guilt is established by legal evidence, and in case of a reasonable doubt as to his guilt he is entitled to be acquitted.
‘ ‘ 2. The indictment in this case charges that Jeff Black was present, aiding and assisting, encouraging by his acts and words, in the killing of Green Butler.
[393]*393“3. In this case the burden of proof to show the truth of the charge is at all times on the State.-
“4. If then the jury believe from the evidence that there is a reasonable doubt, arising out of the evidence, as to the presence of the accused, Jeff Black, at the time of the commission of the murder, then you should acquit him.”
The contention of counsel for appellant in this case is, that as the proof shows with absolute certainty that Roberts killed deceased, and that Slade was present under circumstances very strongly showing his guilt as a principal, the jury might hold the appellant to the burden of proving facts of justification, and hence the requested charge that the burden of proof to show the truth of the charge is at all times on the State. .
This is an elementary principle, and is vital to the rights of the accused, and if the charge of the court in this case was so framed as to permit the jury to cast upon the defendant the burden of proving self-defense, or was so worded as to relieve the State of the burden upon the whole case, then there was error in refusing the requested charge.
By reference to the Black case it will be seen that the trial court in that case failed to instruct the jury that the accused was presumed to be innocent until his guilt is established by legal evidence, and in case of reasonable doubt as to his guilt he would be entitled to an acquittal. The trial court in that case did charge that “if the jury are not satisfied from the evidence that Green Butler was shot and killed by Andrew J. Walker, and that defendant, Jeff Black, was present at the time of the killing, aiding the said Walker by his acts, or encouraging him by his words, they will find him not guilty.
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HURT, Judge.
Slade and Roberts were jointly indicted for the murder of Pleas White. A severance was had, and Slade was placed on trial, which resulted in a conviction for murder of the second degree, his punishment being fixed at confinement in the penitentiary for forty years. From this judgment Slade appeals and assigns numerous errors.
First assignment: “The court erred in overruling the motion for continuance. ’ ’ The evidence desired from Mrs. Ann Roberts was ‘ ‘ that she saw defendant when he arrived at Dave Roberts’, and that there was' no blood upon his shirt, and that Slade had changed his shirt at Dave Roberts’ house.” This is consistent with the theories of the State and of appellant, the State contending that the appellant changed his shirt at E. Z. Roberts’ house; and if this be so, there was no blood on appellant’s shirt when he reached Dave Roberts’.
Second: That there was error in admitting the testimony of Mrs. Ewing and J. A. Van Hoos. Van Hoos swore that appellant, on the day of the homicide, threatened to kill Jordan White, Billy Groves, and Tom Fowler. The objection being to the threats to kill other persons than deceased, viz., Jordan White, Groves and Fowler, let us suppose that appellant and Roberts intended to kill all of those persons, would the State not have the right to show this? Suppose, after such ■threats had been made, the appellant or Roberts had attempted to kill Jordan White, or Groves, or Fowler. Would not this be cogent evidence to show that the threats to kill deceased, Pleas White, were serious and not idle? The killing of all these persons being within the scope of the conspiracy, the State had the right to show the fact. ¡Nor can appellant complain because this evidence may tend to establish another offense. Mrs. Ewing swore that Roberts made like threats to her. This was after the threats were made to Van Hoos. The threats to Mrs. Ewing were made in the absence of appellant. Concede these facts to be true, the threats were admissible, though made in the absence of Slade, because a conspiracy to kill deceased had very clearly been proved, not only by the threats to Van Hoos, but by other circumstances tending strongly to show such conspiracy.
Fourth assignment: “There was error in refusing to give special charge ¡No. 4.” Appellant requested the court to charge: “When the admission or confession of a party is introduced in evidence by the State, then the whole of such admission or confession is to be taken together, and the State is bound by them, unless they are shown by the evidence [392]*392to be untrue; and unless the State has shown the statements of defendant as to how the killing took place to be untrue, you should acquit him.” This is an excerpt from the opinion in Pharr v. The State, 7 Texas Court of Appeals, 472. In the Pharr case the trial court had submitted to the jury two charges relating to the confessions or statements of the accused, the last being calculated to neutralize the first; the first being correct and the last wrong. The charge rejected in this case is in the language of the correct one in Pharr’s case. Now, it is not decided in the Pharr case that, though correct, such a charge must always be given, when requested, in every case in which the State introduces in evidence the admissions of the accused. This question was not before the court in the Pharr case. Under what circumstances must such a charge be given? This question is answered in Jones v. The State, ante, p. 20. When the State relies for conviction alone upon the admissions and confessions of the accused, and such confessions or admissions contain exculpating or mitigating matters, such a charge should be given. In this case the State did not rely upon confessions or admissions alone for conviction. These were introduced mainly for the purpose of impeaching the accused, who testified in the case. There was a large mass of evidence adduced by the State in rebuttal of these confessions and admissions.
Fifth assignment: “The court erred in refusing to give a special charge as follows: ‘You are instructed that should you find from the testimony, and so believe, that prior to the killing they had abandoned such formed design to kill the deceased, and that the deceased was afterward killed by the said E. Z. Roberts, and the defendant did no act at the time aiding, encouraging, or abetting the commission of the offense, he should only be held liable (if guilty at all) as an accomplice, and you can not find him guilty of that offense under this bill of indictment.’ ” There is no evidence of an abandonment of the design to kill deceased. Again, if appellant agreed to kill deceased he certainly was a principal, because it is absolutely certain that he was present at the homicide.
Sixth assignment: “The court erred in refusing to give a special charge as follows: ‘Upon the question of proof you are charged that the burden of proof never shifts from the State to the defendant, but is upon the State throughout. ’ ” In support of this assignment we are cited to quite a number of cases, but counsel for appellant rely mainly upon the opinion of this court in Black v. The State, 1 Texas Court of Appeals, 368. In that case the following charge was requested and refused:
“1. The accused must be presumed to be innocent until his guilt is established by legal evidence, and in case of a reasonable doubt as to his guilt he is entitled to be acquitted.
‘ ‘ 2. The indictment in this case charges that Jeff Black was present, aiding and assisting, encouraging by his acts and words, in the killing of Green Butler.
[393]*393“3. In this case the burden of proof to show the truth of the charge is at all times on the State.-
“4. If then the jury believe from the evidence that there is a reasonable doubt, arising out of the evidence, as to the presence of the accused, Jeff Black, at the time of the commission of the murder, then you should acquit him.”
The contention of counsel for appellant in this case is, that as the proof shows with absolute certainty that Roberts killed deceased, and that Slade was present under circumstances very strongly showing his guilt as a principal, the jury might hold the appellant to the burden of proving facts of justification, and hence the requested charge that the burden of proof to show the truth of the charge is at all times on the State. .
This is an elementary principle, and is vital to the rights of the accused, and if the charge of the court in this case was so framed as to permit the jury to cast upon the defendant the burden of proving self-defense, or was so worded as to relieve the State of the burden upon the whole case, then there was error in refusing the requested charge.
By reference to the Black case it will be seen that the trial court in that case failed to instruct the jury that the accused was presumed to be innocent until his guilt is established by legal evidence, and in case of reasonable doubt as to his guilt he would be entitled to an acquittal. The trial court in that case did charge that “if the jury are not satisfied from the evidence that Green Butler was shot and killed by Andrew J. Walker, and that defendant, Jeff Black, was present at the time of the killing, aiding the said Walker by his acts, or encouraging him by his words, they will find him not guilty. If the jury entertain a reasonable and well founded doubt of the guilt of the defendant, arising out of the evidence of the case, they will find him not guilty.” In the case we are new considering the court did instruct the jury that “the defendant is presumed to be innocent until his guilt is established by legal evidence, and if you have a reasonable doubt of his guilt you "will find him not guilty.” The court further charged that “ the facts and circumstances relied on, and which are necessary to establish his guilt, must be proved beyond a reasonable doubt; they must be consistent with each other; must be inconsistent with any other reasonable hypothesis than that of defendant’s guilt; and they must satisfy the minds of the jury beyond a reasonable doubt that the defendant is guilty of the offense with which he is charged.” Under such instructions is it at all probable that the jury would have understood that the burden of proving anything whatever was upon the defendant? Would there be any doubt that the burden was upon the State to .establish not only the killing, but that the homicide was murder? We think not.
[394]*394We have carefully examined the other assignments of error. None of them are well taken when considered with reference to the charge as a whole and in the light of the evidence in the case.
Affirmed.
Davidson, J., being disqualified, did not sit in this case.