224 S.W. 782 | Tex. Crim. App. | 1920
Appellant was convicted of murder and allotted twenty years in the penitentiary.
The former appeal is found reported in
After appellant left Ray Anderson's residence with Ray's wife and child, Ray went to see a neighbor to secure his services to look after his place and stock during his absence, with a view of going to his father's residence that evening or night. After doing this, enroute to his father's he stopped at a church where services were being conducted, and while there he had a conversation with three parties, the substance of which was that he asked them if Mrs. Smith, then wife of deceased, was in the congregation. None of them seemed to know and upon investigation, it was determined she was not present. The theory of the State was that he was looking for Otto Smith that night. The court charged the jury with reference to this, that they should not consider these statements and the acts and conduct of Ray Anderson at the church that night in connection with the conversation with the three witnesses for any purpose, unless they should find a conspiracy existed between himself and his father. Exception was reserved to this charge as being insufficient and of a material disadvantage to appellant before the jury. We are of opinion the criticism of the charge is correct. If there was no conspiracy shown this testimony was seriously detrimental, because it was used to impute a concert of action and previous combination and purpose to kill on the part of Ray Anderson in pursuance to an agreement with his father. If this conspiracy did not exist, then clearly the acts and conduct of Ray Anderson were inadmissible, as the court stated, for any purpose, and should never have gone to the jury. It will be noticed that the conspiracy, if shown at all, is by circumstances, and in the mind of the writer not very cogent. In giving this charge the court should have instructed the jury that the acts and conduct of Ray Anderson that night could not be used as evidence of a conspiracy between himself and his father. These were but the acts, if a conspiracy existed, of a co-conspirator, which would not be evidence of the existence of a conspiracy. A conspiracy in this case cannot be proved by these declarations of Ray Anderson. It must be proved aliunde, and the court should have instructed the jury that they should and could not consider such testimony to show a conspiracy between Ray Anderson and his father, appellant. If the jury should conclude there was a conspiracy then these acts and declarations could be considered by them, but on the other hand if *644
there was doubt in their minds as to the conspiracy, they may have used this conduct and these acts and declarations of Ray Anderson to prove such conspiracy or aid in so doing. This was not permissible, and the jury should have been so instructed. The criticism of the charge is correct, and of such a nature as to require a reversal of the judgment. There are quite a number of cases which might be cited, but we cite Robuck v. State,
Another error assigned is the action of the court in permitting the witness Potts to testify as follows: "Well, the night before Friday night, me and another fellow we had had a little racket ourselves and he (Ray Anderson) walked up and whispered to me and said, `I heard you pulled you off one last night,' and I said, `Yes, don't say anything about it,' and he says, `I am going to pull me off one tomorrow if the right party is in town,' and I says, `You are?' and that is all I remember being said." We are of opinion this testimony was not admissible. It is a general statement by Ray Anderson that he was going to "pull off one tomorrow if the right party was in town." Who this was or what it meant, or who he referred to is not specified or indicated. He was in town the next day, and if he referred to deceased, deceased was in town also, and he did not have any disturbance with him. In fact, he left town at the suggestion of his father for fear there might be trouble. But there is nothing in this testimony to indicate or specify the deceased as the party with whom he was going to have this prospective trouble. This testimony should not have gone to the jury, but inasmuch as the court permitted it he should have instructed the jury not to consider it for any purpose unless a conspiracy was shown, and that said remarks *645 related to deceased, and then they should have been instructed that this testimony could not be used to prove the conspiracy.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Rehearing denied October 13, 1920. — Reporter.]