Anderson v. State

• Citation: 213 S.W. 639
• Decision Date: 11 June 1919
• Docket Number: (No. 5412.)
• Parties: ANDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

213 S.W. 639

ANDERSON v. STATE.

(No. 5412.)

Court of Criminal Appeals of Texas.

June 11, 1919.

State's Rehearing Denied June 27, 1919.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

F. W. Anderson was convicted of murder, and he appeals. Reversed.

Walter S. Pope, of Anson, and Stinson, Chambers & Brooks, of Abilene, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

The judgment appealed from condemned appellant to confinement in the penitentiary for a period of 50 years for the offense of murder.

The appellant was driving an automobile along the public road in the direction of his home, accompanied by his son. Immediately before the homicide the deceased, Otto Smith, his brother, Will Smith, and his cousin, Tom Smith, who had been traveling in a buggy along the same road going north in the direction of their home, were in their buggy in front of the house of a neighbor. The son of appellant was called Ray Anderson.

From the state witnesses it appeared that deceased lived upon appellant's farm, and that on the day preceding the difficulty, in a quarrel begun with the brother of deceased, he interfered and threatened to whip appellant, and that after leaving the premises the appellant said, "This ain't settled; I will get you." On the morning of the day of the homicide deceased and his brother went in their buggy in the direction of appellant's house, and when about 200 yards therefrom they saw appellant and his son, the latter carrying a gun and the former a stick or farm implement; that some harsh words took place, and the deceased and his brother did not pass appellant's house, but, taking another route, went to the town of Anson, where they subsequently, about 9 or 10 o'clock in the morning, saw appellant. The circumstances indicate that he left Anson some time before the deceased and his brother, and that they, on their return to their home, which was on the same road, about 1½ miles north of the home of appellant, borrowed a shotgun and shells, and passed appellant's house during his absence, and that they stopped at the home of a neighbor, who lived on the same road about midway between the home of the deceased and the home of appellant. While their buggy was standing on the side of the road, and they were in conversation with this neighbor, an automobile was seen coming from a northern direction and traveling rapidly, about 35 miles an hour, "but not going so fast as it went by." As the automobile approached, the deceased and his brother and cousin, who were with him in the buggy, began getting out of the buggy, and one of them said on the witness stand:

"When they got in 3 or 4 feet of us, Ray Anderson was sitting with his feet kinder up on the wind shield and his gun down this way. Old man Anderson [the appellant] was driving the car. He was on the left side, and Ray was on the south side, next to the buggy. When I first noticed the gun, they were right near me. It was sitting there by the side of him, and when he was in 3 or 4 feet of us he just came up and shot. Just went down and brought the gun up with both hands and fired as they passed by. I judge they passed within 4 or 5 feet of me. When he shot, he stuck the gun out from under the top of the car."

The gun which was in the buggy with the deceased was also fired, the two shots being simultaneous. The state's witness, deceased's brother, claimed that he fired accidentally, and that the discharge went into the ground. It was shown by the sheriff's testimony, however, that he examined the appellant's car soon after the homicide, and its appearance indicated that a shot had been fired into it. The witnesses agreed in their statements that they did not see the appellant, or hear him say anything to his son, or do anything, except to drive the car along the public road at the time of the homicide. Appellant's son lived some distance from the residence of his father, and the record offers no explanation of his presence at his father's home.

The court instructed the jury on the law of principals, embracing the theory of a conspiracy, as well as that of abiding and encouraging the unlawful act. He also submitted self-defense, manslaughter, and instructed the jury that if Ray Anderson acted alone, upon his own volition, the appellant would not be guilty. The failure of the court to embody the law of circumstantial evidence was complained of at the trial and is brought here for review. There being no direct proof that he took part, and it being alone from inferences drawn from the existence of other facts proved that the state was to rely to show that he advised or encouraged the homicide, it was the right of appellant to have the jury know that in applying such inferences the facts supporting them must not only be proved beyond a reasonable doubt, but the circumstances must be consistent with each other, consistent with the guilt of the appellant, inconsistent with his innocence, and inconsistent with any reasonable hypothesis save his guilt, and to know that the trial judge recognized that there was no direct evidence that the appellant advised the homicide, or, knowing that his son had an unlawful intent to do so, he was aided or encouraged by the words or acts of the appellant. That the mere presence of the appellant at the time and place of the homicide would not justify his conviction is the established law of this state. Leslie v. State, 42 Tex. Cr. R. 65, 57 S. W. 659. The court so instructed the jury. It is equally well established that, when the actual killing is done by another, the mere presence of the accused does not deprive him of the privilege of having his criminal connection with the offense determined by the rule of circumstantial evidence. In Burrell's Case, 18 Tex. 713, Burrell and Burns were prosecuted for the killing of Bird. The evidence shows that Burrell and Burns were traveling companions, and were joined by Bird at the request of Burns. Both Burrell and Burns were present at the time the fatal shot was fired. Burrell fired it, and, they having been tried together, his case was affirmed, but Burns' case was reversed, because of the refusal of the court to instruct the jury on the law of circumstantial evidence. We take from the opinion the following quotation:

"But it is not so clear that there is not error, both in the refusal of instructions and in the charge of the court in reference to the case of the defendant Burns. If he be guilty, it is as a principal in the second degree, being present, aiding and abetting the commission of the homicide. To constitute the crime of which the evidence tends to convict him, there must have been a participation on his part in the act. If he was cognizant of the intention of his co-defendant, and, being present, was consenting, and it was but the carrying out of a common design, he is guilty equally with him who committed the deed; and upon this subject the general principle is correctly stated in the charge of the court. But, in order to implicate him in the crime, he must have been aware of the intention of his companion to commit it. His bare presence is not sufficient. For `although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who committed it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon.' Roscoe Cr. Ev. 213; Whart. Am. Cr. L. 6364; Whart. L. Homicide, 157. Whether he was aware of the intention of his companion and participated in it, was the fact to be proved, in order to implicate him in the criminality of the act. That, as to him, was the factum probandum, upon the proof of which his conviction must rest. And as to that the evidence was wholly...