this one adopts as a part thereof the statutes of the state known as the Parole Law. (See Chap. 4, Title 12, Vernon's Texas Crim. Proc. and the rules of the Prison Board made by virtue thereof.) Granting the parole proclamation under which the relator claims his liberty to be properly classified as in the nature of a conditional pardon (Ex parte Nelson, 84 Texas Crim. Rep. 506), and granting that the parole statutes in no wise hampered or restricted the control of the exercise of executive clemency which is, by the constitution, vested in the Governor, that officer having in the proclamation in question adopted, by reference, the rules and statutes governing parole, the relator, having accepted his liberty thereunder, is bound by the terms of the proclamation. The rules and statutes mentioned reserved in the executive the right to summarily revoke the parole. As said in Redwine's case:

"If the terms of the grant, expressly or by necessary implication, make any other authority than the courts the arbiters of the question as to when the conditions of the grant have been violated, then the prisoner's quarrel lies not with the courts for refusing to assume jurisdiction but with the Governor when he made the terms of the grant, and the prisoner himself when he accepted them." The application is dismissed.

Dismissed.

SIMEON HAYS V. THE STATE.

No. 5998. Decided October 26, 1921.

1.—Murder-Principals-Charge of Court-Rule Stated.

Where, upon trial of murder, the evidence showed that the defendant was present when the deceased was killed, knowing the unlawful purpose of his companions who also engaged in the killing, he aided and encouraged them, the court properly charged on the law of principals under Article 78, Penal Code. Following Middleton v. State, 86 Texas Crim. Rep., 307.

2.-Conspiracy-Circumstantial Evidence-Intent.

A conspiracy may be proved by circumstantial evidence, and the intent to kill, etc., may be shown by defendant's conduct at the time of the homicide. Following Cox v. State, 8 Texas Crim. App., 254.

3. Same-Conspiracy-Evidence-Rule Stated-Res Gestae-Co-conspirator. Where there is prima facie evidence of a conspiracy, the acts and declarations of each conspirator done in the prosecution and furtherance of the common design, or which form a part of the res gestae of any act designed to advance the object of the conspiracy which is already in evidence, are admissible against any or all of the conspirators. Following Richards v. State, 53 Texas Crim. Rep., 400.

4.

Same-Declarations and Acts of Co-Defendant-Evidence.

The evidence of the acts and declarations of a co-defendant in his conduct towards deceased before leaving the place of the dance was properly

received, as they were circumstances supporting the inference that he heard it. Besides, this was shown by other testimony.

5.—Same-Evidence-Other Offenses-Co-Conspirators-Res Gestae-Intent.

That the conduct of co-defendants in furtherance of the common design constituted other violations of the law, did not render it unavailable to the State, under the rule of excluding extraneous offenses, they being part of the res gestae and showing the intent. Following English v. State, 34 Texas Crim. Rep., 190, and other cases.

6. Same-Manslaughter-Charge of Court-Precedent.

Where, upon trial of murder, the charge of the court on manslaughter, when considered in the light of the record and other paragraphs of the charge, and that of former precedent, the same was sufficient, there was no reversible error. Following Moore v. State, 88 Texas Crim. Rep., 624, 228 S. W. Rep., 221.

7.-Same-Requested Charges-Converse Proposition-Principals.

Where the requested charges offered, under the subject of manslaughter, were but a repetition of matters covered by the main charge, and not adapted to supply any defect in the charge upon that subject due to an inadequate submission of the converse of the proposition, therein contained, they were correctly refused, and the same may be said on the subject of principals.

8.-Charge of Court-Self-Defense-Abandonment-Manslaughter-Requested Charge.

In connection with the charge upon self-defense, and manslaughter, there was no impropriety in charging upon the law of abandonment of the difficulty by the deceased; however, upon another trial the question of self-defense which undertakes to state the circumstances upon which the deceased might have been found to have acted in self-defense, should be omitted, and the charge on continuing danger, under the facts should be submitted, but not in the language contained in the requested charges.

9. Same-Charge of Court-Self-Defense-Defense of Another-Reversible Error.

Where, upon trial of murder, the court gave a charge applying the principle of self-defense to the theory arising from the evidence, that if defendant took part in the homicide, and was acting in defense of his brother who had been fired upon and shot by the deceased, he should be acquitted, but the evidence raised the issue of self-defense applicable to the defendant himself, and the court failed to charge on the law of self-defense applicable to the defendant in defending his own person, the same was reversible error. Following Knight v. State, 84 Texas Crim. Rep., 396, and other cases. 10.-Same-Defendant as a Witness-Charge of Court-Practice in Trial Court-Bill of Rights.

Our statute gives the defendant the privilege of testifying in his own behalf, and when he does so, he becomes a witness and is subject to all the tests of truth that are applied to other witnesses, and when he testifies to facts which, if true, excuse or mitigate the offense, with which he is charged, no judge has the authority to decide that his testimony is false, but the jury must pass upon its credibility under a proper charge of the court. This is demanded under the Bill of Rights which provides the right of trial by jury to remain inviolate.

Appeal from the District Court of Bowie. Tried below before the Honorable P. A. Turner.

90 T. C.-13

Appeal from a conviction of murder; penalty, fifty-five years imprisonment in the penitentiary.

The opinion states the case.

Sid Crumpton, and L. E. Keeney, for appellant.-On question of manslaughter: Guffey v. State, 8 Texas Crim. App., 201; Moore v. State, 26 id., 333; Young v. State, 41 Texas Crim. Rep., 442; Moffatt v. State, 35 id., 257; Williams v. State, 40 id., 565; Harrison v. State, 47 id., 401.

On question of principals: Parnell v. State, 50 Texas Crim. Rep., 423; Chambers v. State, 46 id., 66; Hargrove v. State, 33 id., 431; Snell v. State, 29 Texas Crim. App., 240; Loessin v. State, 46 id., 553; Pedro v. State, 48 id., 406.

On question of self-defense: Glover v. State, 33 Texas Crim. Rep., 227; Johnson v. State, 132 S. W. Rep., 804; Swain v. State, 48 Texas Crim. App., 90; Lundy v. State, 127 id., 1034.

On question of conspiracy: Lara v. State, 48 Texas Crim. Rep., 571; Webb v. State, 47 id., 307; Goodman v. State, 47 id., 388; Williams v. State, 38 id., 128; Walton v. State, 41 id., 459.

C. M. Cureton, Attorney General, for the State.-On question of dying declarations: Burrell v. State, 18 Texas, 721; Black v. State, 1 Texas Crim. Ap., 384; Taylor v. State, 38 Texas Crim. Rep., 552; Brookins v. State, 158 S. W. Rep., 522.

MORROW, PRESIDING JUDGE.-The conviction is for the offense of murder with punishment fixed at confinement in the penitentiary for a period of fifty-five years.

Simeon Hays, Tom Hays and Boy Barnes were charged by separate indictments with the murder of Tom Smith. Barnes was also charged with an assault with intent to rape on account of acts done in the same transaction.

The facts in the main are found in Barnes v. State, 232 S. W. Rep. 312, and 88 Texas Crim. Rep., 500, 228 S. W. Rep., 225, and in Tom Hays v. State, not yet reported.

Simeon Hays was present when the deceased was killed. There is evidence that, knowing the unlawful purpose of Tom Hays and Barnes, he aided and encouraged them. The propriety, therefore, of charging on the law of principals is not open to question. Penal Code, Art. 75; Middleton v. State, 86 Texas Crim. Rep. 318.

The contention that the phase of the law of principals set forth in Article 78 of the Penal Code, that is, that one is a principal who advises or agrees to the commission of an offense and is present when it is done, should not have been embodied in the charge, is not sound, in our judgment.

Conspiracy may be proved by circumstances, and it is generally necessary to do so. Wharton's Crim. Ev., Vol. 2, Sec. 888; Underhill on Crim. Ev., Sec. 491. It is true that it cannot be proved by the acts or declarations of others in the absence of the accused. Wharton's Crim. Ev., Vol. 2, Sec. 1673; Cox v. State, 8 Texas Crim. App. 254; Blain v. State, 33 Texas Crim. Rep. 236.

The conduct of appellant and his two companions was, according to the State's evidence, directed to the accomplishment of the same unlawful object, and their conduct was sufficient to support the finding of the jury that they had agreed to take the life of Smith. Underhill on Evidence, Sec. 491; Wharton on Homicide, 3rd Ed., Sec. 441. The evidence of the acts and declarations of Boy Barnes in his conduct toward deceased before leaving the place of the dance was properly received as there were circumstances supporting the inference that he heard it. Its admissibility, however, would be supported by his subsequent conduct, as described by the State's witnesses, in advising and taking part in the commission of the homicide.

"When the concert of action is once established, all of the facts and circumstances which preceded and connectedly lead up to the homicide, are relevant." (Wharton's Crim. Ev., Vol. 2, p. 1732).

Kipper v. State, 45 Texas Crim. Rep., 379. Where there is prima facie evidence of a conspiracy, the acts and declarations of each coconspirator "done in the prosecution and furtherance of the common design, or which form a part of the res gestae of any act designated to advance the object of the conspiracy which is already in evidence, are admissible against any or all of the conspirators." Underhill on Crim. Ev., Sec. 492; Richards v. State, 53 Texas Crim. Rep. 400.

Appellant's intent to kill the deceased and his intent to join his companions in so doing is inferable from his conduct at the time of the homicide, as described by the eyewitnesses and the dying declaration of the deceased. The acts of his companions, which were proved, were relevant. They were indicative of a purpose to bring on a difficulty that might be used as a pretext for slaying the deceased. That the conduct of Barnes and Tom Hays in furtherance of the common design constituted other violations of the law did not render it unavailable to the state under the rule excluding extraneous offenses. These are not excluded where they are part of the res gestae or where they tend to show the intent. Wharton's Crim. Ev., Vol. 1, Sec. 33, p. 121; English v. State, 34 Texas Crim. Rep., 190; Crews v. State, 34 Texas Crim. Rep. 533. There was joint and several responsibility for the individual acts of each of the conspirators in executing the common purpose. Wharton on Homicide, Sec. 418 to 443.

The criticisms of the charge on principals are addressed, not to the manner of submitting the law but to the fact that it was submitted at all. No defects in the charge on the subject have been pointed out in the exceptions to the charge, and we have discerned none. See Middleton v. State, 86 Texas Crim. Rep. 319.

The charge on manslaughter is assailed. In it the court said: "Now, if you believe from the evidence that the defendant heard one or more pistol shots and he looked and saw or learned that the deceased, Tom Smith, had shot his brother, Tom Hays, and that he knew nothing of the circumstances that caused Tom Smith to shoot his brother," etc.

The same legal question has arisen before. See Pitts v. State, 29 Texas Crim. App., 374; Moore v. State, 88 Texas Crim. Rep., 624, 228 S. W. Rep., 221.

"When the issues of self-defense, manslaughter, and murder are raised by the evidence, it is often difficult to so frame the charge to the jury that it will not trench upon the rule touching the burden of proof, and at the same time safeguard the rights of the accused. This difficulty grows out of the fact that the lower grades of homicide are included in an indictment for murder, and these lower grades, in a case involving the issues mentioned, occupy both an offensive and a defensive relation to the case. The jury is called upon to determine whether the homicide was lawful or unlawful. The burden is upon the state to prove, beyond a reasonable doubt, the facts which show it to be unlawful and the facts which bring it within the higher, rather than the lower, grade of offense included in the indictment. To bring an unlawful homicide within the grade of manslaughter as against that of murder, the burden is not upon the accused to prove the mitigating circumstances, but he is entitled to have the offense mitigated to the grade of manslaughter, if there is evidence which produces in the minds of the jury a reasonable doubt as to which of the grades, the higher or lower, he should be convicted." (Moore v. State, supra.)

Considered in the light of the record and other paragraphs of the charge, we think the complaint of the charge on manslaughter is without merit.

The special charges offered on the subject of manslaughter we conceive to be but a repetition of matters covered by the main charge, and not adapted to supply any defect in the charge upon that subject due to an inadequate submission of the converse of the propositions therein contained; and the same may be said of the special charges upon the subject of principals. If the charge should be rewritten in its present form upon another trial, and special charges. should be presented or exceptions filed pointing out the propriety of supplementing the charge with instructions concerning the converse of the matters therein contained, the court, no doubt, responding to the rule upon the subject, would not fail to comply with it and so amend the charge as to fully protect the rights of the accused.

In connection with the charge upon self-defense and manslaughter, there was no impropriety in charging upon the law of abandonment of the difficulty by the deceased. We think, however, that upon another trial, the paragraphs of the charge which undertakes to state. the circumstances on which the deceased might have been found by