Watson v. State

• Decision Date: 12 June 1889
• Parties: WATSON <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 404

12 S.W. 404

WATSONv.

STATE.

Court of Appeals of Texas.

June 12, 1889.¹

Appeal from district court, Robertson county; HENDERSON, Judge.

John Watson was convicted of murder in the second degree, and appeals.

Simmons & Crawford, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

It is charged in the indictment that defendant and one Brown "acted together" in murdering the deceased. The court instructed the jury that "if the defendant, acting by himself, or acting together with one W. R. Brown," etc., killed the deceased, etc. Defendant excepted to this instruction, upon the ground that the indictment did not charge him severally with the commission of the murder, but charged that said murder was committed jointly by Brown and himself; and that, therefore, said instruction was inapplicable and unwarranted. We do not regard the exception as well grounded. If the indictment had simply charged that defendant and Brown committed the murder, unquestionably, a conviction under it would be sustained upon proof that he alone committed it, or that he acted together, as a principal, with Brown, or with any one else, in its commission. Davis v. State, 3 Tex. App. 91; Gladden v. State, 2 Tex. App. 508; Williams v. State, 42 Tex. 392. The allegation that defendant and Brown acted together in the commission of the murder we regard as mere surplusage, and not descriptive of the offense, not material in any respect, and as neither enlarging nor restricting the responsibility or rights of the defendant. We are clearly of opinion that under the indictment the defendant might legally be convicted of the murder, not only upon proof showing that he acted together with Brown in its commission, but upon proof showing that he committed it alone, without Brown in any manner being connected with its commission.

Another portion of the charge was excepted to by the defendant, upon the grounds that it was unwarranted by the evidence, and was upon the weight of evidence. The portion of the charge referred to reads as follows: "The mere presence of a party at the time and place where an offense is committed, does not constitute such party a principal; he must be present at the time and place, with a knowledge of, and participation in, the offense. Of this the jury are to judge from the surrounding circumstances in proof, such as companionship of the parties, and the conduct of defendant at, before, and after the commission of the offense." We think this paragraph of the charge was fully warranted by the evidence; and we are, furthermore, of opinion that it was not on the weight of evidence. To instruct the jury that a certain fact may be inferred upon proof of other facts, without assuming that such other facts have been proved, is not always a charge upon the weight of evidence, within the meaning of the rule. Sharpe v. State, 17 Tex. App. 499. Considered with reference to the evidence in this case, we think said...