Cox v. State

8 Tex. Ct. App. 254 | Tex. App. | 1880

White, P. J.

On the night of the 19th of September, 1876, about the hour of eleven o’clock, Dr. Philip Brazell and his son George Brazell were taken from their home by a body composed of some ten or twelve armed men, claiming to be a sheriff with his posse, were carried some two hundred yards into the woods, and were there most foully and inhumanly shot to death. This double assassination occurred in the county of DeWitt.

Prior to the finding of an indictment, two investigations with regard to the murder were had, at each of which the testimony was reduced to writing,— the one being a coroner’s inquest, and the other before a magistrate sitting as an examining court. On the 20th day of December, 1876, the grand jury of DeWitt County returned into court two indictments, the first charging seven parties, to wit, William D. Meador, Jake Ryan, Dave Augustine, James Hester, Charles H. Heissig, Joe Sitterlie, and William Cox, jointly with the murder of Dr. Philip Brazell, and the second charging the same defendants jointly with the murder of George Brazell. Defendants sued out and were brought before Judge Pleasants upon a writ of habeas corpus, and another investigation of the case was had, the testimony being again reduced to writing. A refusal of bail by the judge, an appeal to this court, and an affirmance of the judgment were the results of the habeas corpus proceedings. At the December term, 1877, of the District Court of DeWitt County, a severance having been granted, defendants Dave Augustine and James Hester came to trial on the indictment for the murder of George Brazell, and were acquitted ; and on the same day, upon motion of the district attorney, the prosecution in the same case was dismissed as to Charles H. Heissig, another defendant. On the same day the district judge, of his own motion, changed the venue as to the other defendants to the county of Bexar. We reproduce so much of this order as is necessary to show the pertinency of the objections urged against it on the trial. It reads as follows, to wit: —

“ The State of Texas v. W. D. Meador et al. December 29, 1877.

“In this cause, The State of Texas v. William D. Meador, Jake Ryan, Joe Sitterlie, and William Cox, charged with the murder of George Brazell, upon motion of the judge presiding, H. Clay Pleasants, and for the reason that the judge is satisfied that there exists in this county influences resulting from the terrorism prevailing among the good people of the county which will prevent a trial alike fair and impartial to the accused and the State, it is ordered that the venue in this cause be changed from De Witt County to the county of Bexar, in the Twenty-second Judicial District of this State,” etc.

To this order defendants at the time interposed the following objections, which were overruled, and the points were reserved by a bill of exceptions duly certified.

“ 1. Because there is no law authorizing the judge of the court to change the venue in said cause upon his own motion.

“2. Because the first section of the act of the Legislature approved August 21, 1876, is unconstitutional and void.

“3. Because the county of Bexar is not the nearest county to the County of DeWitt.”

At the April term, 1878, of the District Court of Bexar County these appellants, Cox, Ryan, and Sitterlie, having severed from their co-defendant Meador, were all three jointly tried and each convicted of murder in the first degree. From this final judgment of conviction they prosecute their appeal to this court.

Three constitutional questions, and questions incident thereto, raised by appellants, will be disposed of in limine, before we examine other points during the trial. These questions are: —

1. The constitutionality of the first section of “An act to provide for the change of venue by the State in criminal cases.” Acts 15th Leg., p. 274.

2. The constitutionality of “An act prescribing the times of holding the District Courts in the Twenty-second Judicial District.” Acts 15th Leg., p. 11.

3. As to whether or not the eighth section of art. 5 of the Constitution of 1869, providing “ that in all' cases where by law it may be provided that capital punishment may be inflicted the jury shall have the right, in their discretion, to substitute imprisonment to hard labor for life,” is still in force as part of the law of the land, — the Constitution of 1876 being silent upon the subject.

1. The first section of “An act to provide for the change of venue by the State, in criminal cases,” is in these words : Sect. 1. “ That whenever, in any case of felony, the district judge presiding shall be satisfied that a trial alike fair and impartial to the accused and to the State cannot, from any cause, be had in the county in which the case is pending, he may upon his own motion order a change of venue to any county in his own or in an adjoining district, stating in his order the grounds for such change of venue.” Acts 15th Leg., p. 274.

It is contended that this section is obnoxious to the thirty-fifth section of art. 3 of the Constitution, which declares that “no bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

The ground of objection is that the title of said act shows that the act intended only a change of venue “ by the State,” while this first section does not confine or limit the action of the judge to cases where it may be to the interest of, or for and on behalf of, “ the State,” but makes his action dependent upon the fact that he is satisfied that “a trial alike fair and impartial to the accused and to the State cannot, from any cause, be had in the county.” In other words, that it does not authorize a change of venue by “ the State” alone, nor in behalf of “the State” alone, but on behalf of “the accused and the State” conjointly;. and that such being its purpose, the subject of the section is not expressed in the title of the act.

Should this construction be correct, it would not necessarily follow that the entire section would be void, but, as we have seen under the latter clause of the constitutional provision invoked and quoted above, the part which refers to “ the accused ” might be void, and still the part applicable to “the State” remain valid. But it appears to us that the criticism is hypercritical. We cannot imagine a state of case in which a trial at law in any event could be said to be fair and impartial, or vice versa, when it is so only as to one party, and directly the opposite as to the other. From a- legal stand-point, the proposition is worse than paradoxical, —it amounts to an absurdity.

Again, it is said that the object of the act is to provide for a change of venue by “ the State,” and yet the first section authorizes the district judge, of his own motion, to order the change ; that the judge is not the representative of the State in any judicial matter pending before him, and that district and county attorneys are the only official representatives of the State upon whose motion or application the object of the act could be properly and legitimately obtained. True, a judge, technically speaking, may not be a representative of the State in prosecuting parties charged with crime; but he is nevertheless an officer of the State charged with the high and responsible duty of seeing that the law is faithfully administered, — that law which also enjoins that in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. Const., art. 1, sect. 10. Holding the “ scales of justice equally balanced,” and supposed to be far removed from the influences of interest, prejudice, and passion, he is expected to guard with equal jealousy the respective rights both of the State and the accused. Upon whom else could the power be conferred with the same confidence that it would not be abused? The authority is expressly conferred by the Constitution upon and vested in the courts; the manner in which it should be exercised was alone left to legislative regulation. Sect. 45 of art. 3 declares: “The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law, and the Legislature shall pass laws for that purpose.” What is “ the court” that is vested by the Constitution with power to change the venue of cases, •if it is not the judge presiding? Counsel surely have overlooked this provision of the Constitution, in the able constitutional argument made against the constitutionality of the law. It is certainly not cited or referred to in the brief devoted mainly to this branch of the case.

The second section of the act, so highly commended by counsel as furnishing the only rule of practice in such cases, itself provides that the judge shall hear proof in relation to the representations of the district or county attorney, and if satisfied that the representation is well founded, and that the ends of public justice will be subserved thereby, he shall order a change of venue, etc. Acts 15th Leg., p. 274. And so, under the articles of the Code providing for a change of venue on application of defendant, the judge-must satisfy himself of the truth of the ground set out in the motion. Pasc. Dig., art. 2994; Buie v. The State, 1 Texas Ct. App. 452; Dupree v. The State, 2 Texas Ct. App. 613; Dixon v. The State, 2 Texas Ct. App. 530; Noland v. The State, 3 Texas Ct. App. 598; Johnson v. The State, 4 Texas Ct. App. 268; McCarty v. The State, 4 Texas Ct. App. 461. The correct doctrine is that the change of venue in any case depends upon whether the judge is satisfied as to its expediency or inexpediency; and his discretion determining it will not be revised unless it is clearly apparent that it has been abused. If, then, the judge is the power that must be primarily and ultimately satisfied, why the necessity of introducing proof to satisfy him, when he is already satisfied without proof ? In other words, why prove to him a fact with regard to which, when proved, he must exercise his own discretion, when he is already sufficiently possessed of a knowledge of the fact, and prepared to act upon it on his own motion? See 43 Ga. 483; 13 Minn. 341.

In Preston’s case, where the defendant applied for change of venue, and the judge, of his own motion, ordered the case to Cooke County instead of Clay (the nearest court-house), this court said : “ If it was known to the court that the same objection existed in Clay County as in Montague, it did not require further proof of that fact, but the court would be authorized to change the venue to some county adjoining Montague, not subject to any valid objection.” 4 Texas Ct. App. 186. See Brown v. The State, 6 Texas Ct. App. 286.

This decision is conclusive of the objection. Authority to pass such a law is unquestionably conferred by sect. 45 of art. 3 of the Constitution, supra, and the act of 1876 seems to us to be in perfect harmony with the Constitution.

But asnin. it is contended that if the act is constitutional. the order of the judge in this instance is a nullity, because it did not comply with the letter or spirit of the law; that the language used in the order, —to wit, “ that there exists in this [DeWitt] county influences from terrorism prevailing among the good people of the county which will prevent a trial alike fair and impartial to the accused and to the State ” — is vague, uncertain, unintelligible, and meaningless. We do not concur in the view of counsel. On the contrary, we think the grounds stated by the judge are fully in compliance with both the letter and the spirit of the law ; are clear, plain, intelligible, and concise; and such as, if they needed further explanation, might well be explained by the judicial knowledge which the court must take of the current history of the times, wherein terrorism, as shown by this record itself, has prevailed to such an extent in DeWitt County that the power and authority of the law was unable to sustain itself without the aid of the military arm of the State, and the scales of justice could be kept equally balanced only when the judicial officer holding them was supported by the imposing presence and bearing of a determined body of soldiery. See the fourth section of the act of 1876, pp. 274, 275.

Another position assumed against the validity of the order changing the venue to Bexar County is that it is in contravention of the sixth article of the amendment to the Constitution of the United States, which reads, that “ in all criminal prosecutions the accused shall enjoy a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,” etc. A sufficient answer to this position is found in the opinion of the Supreme Court of the United States in the case of Twitchell v. The Commonwealth, where it was held that the Fifth and Sixth Amendments to the Constitution of the United States (relating to criminal prosecutions) were not designed as limits upon the State governments in reference to their own citizens, but exclusively as restrictions upon Federal power. 7 Wall. 321; Barron v. City of Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 434; Gut v. The State, 9 Wall. 35. It is to be noted that the tenth section of our Bill of Rights does not, like the Sixth Amendment, supra, limit the jury trial to a jury of the vicinage or of “ the district wherein the crime shall have been committedand it is evident that, if the framers of our organic law had intended to confer the right upon offenders to have the trial so restricted, they would have said so when the matter was directly under consideration by them. That the principle is elementary, and one as old as the common-law right of trial by jury, — is uniform in other States and countries, — is no answer to an express statute declaring that in certain cases it shall be otherwise in this State. In the case of Horbach v. The State, 43 Texas, 251, Chief Justice Roberts says : “ Formerly it was the rule to get jurors from the vicinage, who knew the parties and the transaction. Now the very opposite is the rule.”

2. The second constitutional objection is a direct attack upon the validity of ‘ ‘An act prescribing the times of holding the District Courts in the Twenty-second Judicial District,” approved May 30, 1876. Acts 15th Leg., p. 11. It is said if this act “ be invalid, then appellants were not tried by a legal court; for that there can be no legal court unless it be held at a time and place fixed by a valid law of the State.” As assumed, the positions are: 1. That the Constitution provides for but two terms annually of the District Court in each county of the State. Art. 5, sect. 1. 2. That the ordinance of the convention which framed the Constitution did fix the times and terms of the courts in the several counties in the several judicial districts. 3. That the act of May 30, 1876, provides for five terms to be held annually in the county of Bexar. No authority for the passage of the act, it is asserted, can be derived from the seventh section of art. 5 of the Constitution, which is that “the Legislature shall have power by general act to authorize the holding of special terms [of the District Court] when necessary, and to provide for holding more than two terms of the courts in any county for the dispatch of business,” etc., because, it is contended, the act is not “ a general act,” but “ a local law ” made expressly to operate in but one particular section of the State, composing one judicial district of the twenty-six into which the State was originally divided.

Succinctly stated, the position is that a statute of a public character cannot be enacted for a particular locality, but must have a general operation throughout the State. This identical question came up before our Supreme Court in the case of Orr v. Rhine, and in the able opinion of our present chief justice (Moore) he says: “It seems to us quite too well settled to admit of discussion, that when there is no express constitutional restriction against the passage of local laws by the Legislature, the courts cannot hold such laws void for the want of constitutional authority to enact them. * * * But it may be said, while this is undoubtedly correct as to many matters of legislation, it does not apply to the jurisdiction of courts and tribunals created either by the Constitution, or the Legislature under its authority. Of course when jurisdiction is conferred or limited by the Constitution, it cannot be diminished or enlarged by the Legislature; but when it is within legislative discretion to create other tribunals than those named in the Constitution, or to enlarge the jurisdiction of such as are named, we see no reason why the Legislature may not, with equal propriety in such cases as in other classes of legislation, exercise their discretion so as to satisfy the wants and meet the demands of the different localities and sections of the State. This has frequently been done .where the constitutional provisions were much more stringent than with us at the time this law was passed. [Citing The State v. Boone, 50 Mo. 317; The State v. Ebert, 40 Mo. 186.] * * * We can only hold a law unconstitutional which plainly violates some constitutional provision. We cannot say that the Legislature has exceeded its authority when it can only be shown by uncertain and doubtful inferences and deductions.” 45 Texas, 345; Reyman v. Black, 47 Texas, 558. It is true, these decisions were rendered upon statutes passed before the adoption of our present Constitution, which fact, however, does not affect the general legal principles enunciated.

Turning to the Constitution, we find enumerated in the fifty-sixth section of art. 3 the subjects upon which the Legislature is restricted from passing any local or special laws, and laws changing the times of and terms'for holding courts are not mentioned amongst the subjects therein prohibited. If such laws are at all embraced in that section, it can only be under the general language of the last paragraph, where it is declared that " in all other cases where a general law can be made applicable no local or special law shall be enacted.” Sect. 57 of art. 3 provides for and prescribes the rules to be observed and the forms necessary to be followed in all cases where local or special laws are desired, and their passage is expressly prohibited unless these forms are pursued. We take it that this latter section (57) relates more especially to that class of legislation which seeks the adjudication of private matters, in which the general public is not supposed to be concerned. Mr. Bouvier defines such acts to be “ those which operate only upon particular persons and private concerns,” whilst he defines general or public acts to be “ those which bind the whole community.” “ Of these,” he says, “the courts take judicial cognizance.” Bouv. L. Dic., tit. “Act.”

To our minds it is evident the framers of our Constitution intended by the use of the phrase “ general act,” in sect. 7 of art. 5, supra, not that such acts should be general to the extent that they should have a uniform operation throughout the State, but simply that in its nature, character, and passage such an act could be enacted, as any general law might be, without going through the forms and complying with the requisites prescribed for local or special laws by the fifty-seventh, section of art. 3. To illustrate the idea: As we have seen, the seventh section of art. 5 expressly, says “the Legislature shall have power, by a general act, to authorize the holding of special terms of the District Court * * * in any county for the dispatch of business.” A special term for such purpose in but one county could not, in the nature of things^ have a uniform operation throughout the State; and it would be an absurdity to hold that it was necessary in such á case, or could ever have been intended, that the general act by which such a purpose or object might be accomplished should include and embrace within the range and scope of its provisions the one hundred and fifty or two hundred other counties in the State that could have no possible interest in the subject-matter. Technically speaking, an act to hold a special term in a particular county would appear to be both a special and a local law. Doubtless the intention was that in the passage of such an act the same forms were to be observed as in any other ordinary general act as contradistinguished from those essential to the validity of local or special laws. Any other construction, it seems to us, would make the expression ‘ general act ” not only contradictory of the provision, but unintelligible in its meaning. The People v. Davis, 61 Barb. 456.

The whole difficulty of the subject is occasioned by the trouble of arriving at a proper definition of a “ general law.” We think the rule laid down by the Supreme Court of California in Brooker v. Hyde gives us a proper and satisfactory solution of the difficulty. In that case it is said, a “ general law is one whose operation is equal in its effect upon all persons or things upon which the law is designed to operate at all. All laws operate upon persons or things. Are we, then, to understand that a general law is only one which operates upon all persons or upon all things? If so, it is obvious that our general laws are very few, if indeed there are any of that class. Obviously, such cannot be the meaning of the words “ of a general nature” as here used. The word general ’ comes from genus,’ and relates to a whole genus or kind ; or, in other words, to a whole class or order. Hence a law which affects a class of persons or things, less than all, may be a general law.” 37 Cal. 366.

The act prescribing the times of holding the District Courts in the Twenty-second Judicial District, and providing for five annual terms in Bexar County, was intended to form part of the general machinery to be used in the administration of the laws of the State, affecting equally the whole citizens of the State who came within its range; and being such, it cannot be considered either special or local in the view contemplated by the Constitution. Conner v. Mayor of New York, 1 Seld. 296; 2 Sandf. 361; Bohl v. The State, 3 Texas Ct. App. 685. Even if the seventh section of art. 5 should be held in conflict with the fifty-seventh-section of the third article, the former would govern, as it specially regulates the subject-matter, and is equally with the other the behest of supreme authority. Warren v. Shuman, 5 Texas, 441.

3. A last constitutional question raised and insisted upon by appellants is that the latter clause of sect. 8, art. 5, of the Constitution of 1869 was not abrogated by the Constitution of 1876, but that it still remains in full force and vigor as part of the criminal law of the State, and that as such the court should have given it in charge to the jury as part of the law applicable to the case. The clause or proviso is as follows, viz.: “ That in all cases where bylaw it may be provided that capital punishment may be inflicted, the jury shall have the right, in their discretion, to substitute imprisonment for life.” Our present Constitution (1876) does not contain this or any similar provision, but is entirely silent upon the subject; unless, indeed, as is urgently contended for appellants, it is embraced in and ■comprehended by sect. 48, art. 16, as follows: “All laws and parts of laws now in force in the State of Texas, which are not repugnant to the Constitution of the United States or to this Constitution, shall continue and remain in force as laws of this State until they expire by their own limitation or shall be amended or repealed by the Legislature.” It is urged that this commutation of punishment was a law and became practically a part of the Criminal Code ; that it has not been expressly repealed by the adoption of the new Constitution or by any subsequent legislative enactment.

In the case of Murray v. The State, 1 Texas Ct. App. 417, this court held that, “ though the Constitution of 1876 contains no similar provision to that above referred to, yet it cannot be held to have abrogated that provision with respect to capital felonies perpetrated while the Constitution of 1869 was in force, inasmuch as such a construction would make the Constitution of 1876 obnoxious to the prohibition in the Constitution of the United States with reference to ex post facto enactments by the States.” As thus enunciated, we still think the doctrine sound both in reason and law. But here the case is different. As now presented, the question is whether or not, in supplanting and superseding entirely the Constitution of 1869, the one of 1876, professing as it does to be complete and perfect in itself, still left in force any portion of the former. We think not. The very purpose of the Constitution of 1876 was to do away effectually and for all time with every part and parcel of the Constitution of 1869, except such as was by positive language retained and incorporated into the former instrument. The ordinance providing for its adoption declared that, if adopted, it should on the third Tuesday in April, 1876, become and thereafter be the organic and fundamental law of the State. In so becoming, the former Constitution became ipso facto dead so far as any continuing or prospective operation was concerned, and only retained vitality to the extent that vested rights were dependent upon the further observance of any of its provisions.

There is a marked distinction between ‘ laws ’ ’ and “ constitutional provisions.” In ordinary use of language, it will hardly be contended that such “provisions ” constitute laws. Laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. “ Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves and for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” “ That meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.” Cooley’s Const. Lim. 57-59; Story on Const., sect. 451.

Having adopted a Constitution which fails to declare that imprisonment for life shall be an alternative punishment for murder in the first degree, it is but fair to presume that the makers of that instrument, and the people who adopted it, intended to nullify that provision of the Constitution of 1869, and to limit the punishment to death as fixed by the statute,

Having disposed of tne constitutional questions, we now turn to the consideration of the other supposed errors committed during the progress and conduct of the trial. All such, as far as they have been relied upon in the able oral arguments and briefs of appellants’ counsel, are summed up in the assignment of errors which is made part of the transcript of the record. Some of these supposed errors have already been disposed of. Without confining ourselves to a discussion seriatim of the remaining questions, we will endeavor, nevertheless, to embrace all such as are-deemed important in our further investigation of the case.

1. On the trial, for the purpose of impeaching the State’s witnesses by showing that they had made contradictory statements, the defence read in evidence portions of the written testimony of these same witnesses as deposed to at the two former hearings of the ease ; that is, on the trial had before the examining court, and at the trial on habeas corpus before the district judge. Numerous extracts were thus read, selected to suit the purposes of defendants, from the different portions of these written statements. To-meet these supposed contradictions, the prosecution, by permission of the court, and over objections of defendants, read the entire evidence as taken down in writing at the two trials. This, it is contended, was erroneous in two respects : first, because it was violative of the known rules of evidence and secondly, because by reading the entire testimony the State was enabled to put before the jury new matter, a portion of which had heretofore been ruled out by the court as illegal and inadmissible when offered as original evidence.

With regard to the above proposition, counsel quote as authority the familiar and well-established rules enunciated by Mr. Roscoe and Mr. Greenleaf. Roscoe says: “With regard to the examination of a witness who upon cross-examination has been examined touching the declarations formerly made by him respecting the matters upon which he has given evidence, it cannot be carried further than those declarations so inquired into, and the whole of the conversation which took place cannot be entered into. * * * When once all that had constituted the motive and inducement, and all that can show the meaning of the words and declarations, have been laid before the court, the court becomes possessed of all that can affect the character or credit of the witness, and all beyond is irrelevant and incompetent.” Roscoe’s Cr. Ev. 184.

As expressed by Greenleaf, the rule is : “After a witness has been cross-examined respecting a former statement made by him, the party who called him has a right to re-examine him to the same matter. The counsel has a right, upon such re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions ; but he has no right to go further and to introduce matter new in itself, and not suited to the purpose •of explaining either the expressions or the motives of the witness. * * •* Therefore, where a witness had been ■cross-examined as to what the plaintiff said in a particular ■conversation, it was held that he could not be re-examined as to the other assertions, made by the plaintiff in the same ■conversation, but not connected with the assertions to which the cross-examination related; although the assertions as to which it was proposed to re-examine him were connected with the subject-matter of the suit.” 1 Greenl. on Ev., sect. 467.

As stated in these quotations, the doctrine will not be ■controverted or denied. It is to be noted, however, that the rules here laid down have reference directly to oral or verbal examinations and cross-examinations of the witnesses. Whether a different rule should obtain where the declarations •■are taken from written statements, and whether these written statements would not come within the purview of our ■statute (and in our opinion they do) which declares that “when ¡>art of an act, declaration or conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood, or to explain the same, may also-be given in evidence” (Pose. Dig., art. 3129)—we say, whether it be held the one way or the other does not affect, the question. In our opinion, the admission of the entire-evidence did not in the main go beyond the legitimate scope-of the rules with regard to oral or verbal statements as-above quoted, and so earnestly invoked by counsel for defendants ; because the portions read by them as involving the supposed contradictions were so numerous, and comprehended so many and different aspects of the facts deposed to by the witnesses, that indeed it is almost impracticable,, if not impossible, to separate the remaining portions so as-to say that any of them were not necessary to an understanding, and directly explanatory of these supposed contradictory statements. Weir v. McGee, 25 Texas (Supp.), 21; Smith v. Chenault, 48 Texas, 455.

But it may be said that while this is true in the main, it will not hold good with reference to the second proposition,— that all rules were transcended in the introduction and admission of new matter in the written evidence which had been excluded when offered in the original evidence, and about which defendants had made no inquiries, and had read nothing from the written evidence in their efforts, at impeachment. To make this objection clear of comprehension, we will state the facts as they appear of record. In her evidence taken on the examining and also on the habeas corpus trials, Mrs. M. A. Brazell had testified in substance that her son George Brazell, the murdered man, after he had been arrested and taken from the house, was permitted to return that he might put on his boots. She says : “ George was sitting down in a chair. I asked him who it was outside ; he looked around and whispered tome, ‘ Bill Meador, Jake Eyan, and Joe Sitterlie are some of them ; I know them all.’” When Mrs. Brazell Avas upon the witness-stand, the prosecution proposed to prove these, declarations of the deceased by her, and on objection of the defendants that the testimony was hearsay, not having been made in the presence or hearing of defendants "or either of them, the court refused to admit the evidence.

In our opinion, this testimony was legitimate as original evidence, and the court erred in its exclusion. It may be further necessary that we should state in this connection that the evidence discloses that George, his father, and two brothers had all been arrested at the dead hour of night by a band of armed men, who had previously surrounded the house; that they had been ordered out of the house before they had time to clothe themselves j that George was permitted to return into the house to get his boots ; that he was still in the custody and under the surveillance of his captors. His sister, Mrs. Edwards, says: “He came back after his boots ; then I heard him say he was talking to Bill Meador. Then Bill Meador was standing at the steps of the gallery. * * * He (George) spoke in an ordinary tone of voice % he seemed to be scared and trembling, and he was excited.”

We have maturely considered the matter, and can perceive no good reason why, under the rules as they seem now to be well settled and established, these declarations were not good as original evidence and parts of the res gestee. Here the party declarant was suffering from mental excitement ; he was scared, and well he might be; he was in duress, — he was forcibly and illegally imprisoned. He was pale and trembling, showing that he but too fully realized his fearful situation, and but too truly anticipated its immediate and awful consequences. Under such mental emotions, feelings, and sufferings, he tells in the very moment of his agony and his fear who they are who are the occasion of it, — tells it to his mother, the dearest, the staunchest, the most confidential friend of his life, — whispers to her, conscious that perhaps it is the last communication he would ever be permitted to make her upon earth, that “Bill Meador, Jake Ryan, and Joe Sitterlie are some of them ; I know them all.”

Mr. Greenleaf says: ‘ ‘ Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence.” 1 Greenl. onEv., sect. 102. In the well-considered case of Insurance Company v. Moseley, and which is now the leading case upon this subject, the Supreme Court of the United States held ‘ that the declarations of a party himself, to whomsoever made, are competent evidence when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from sickness or from injury by accident or violence. So is a declaration made by a deceased person, contemporaneously or nearly so with the main event by whose consequences it is alleged that he died, as to the cause of that event. * * * Where the principal fact is the fact of bodily injury, the res gestee ■ are the statements of the cause made by the injured party almost contemporaneously with the occurrence of the injury, and those relating to the consequences, made whilst the latter subsisted and were in progress.” 8 Wall. 397 (citing Bacon v. The Inhabitants, 7 Cush. 585; Thompson and Wife v. Trevrian, Skin. 402; Aveson v. Kinnard, 6 East, 197; King v. Foster, 6 Car. & P. 325; The Commonwealth v. Pike, 3 Cush. 181; Beaver v. Taylor, 1 Wall. 637). The dissenting opinion of Clifford, J., which was concurred in by Judge Nelson, in that case, does not controvert the rule, nor its application in the view and to the extent we apply it to the fact here presented. The same doctrine is, in effect, declared in 33 Mich. 49, and Rogers v. Crain, 30 Texas, 284. If a party’s declarations at the time as to the cause of his physical sufferings are admissible evidence, why not his declarations of his present mental emotions and feelings, and who it is that has caused these feelings, by having already illegally deprived him of his liberty, and who are in an active state of preparation to •deprive him, in a few short moments, of his life?

If, then, the evidence was competent and legitimate, should the bare fact that it was admitted incidentally, and out of time and place, destroy its legitimacy, and render also incompetent and inadmissible other legitimate evidence with which it happened to be blended? We cannot think so. It was not only competent evidence per se, but was, moreover, intimately connected with the subject-matter of some of the attempted contradictions of the witnesses, — especially in the matter of the identification of the accused parties, —and was, further, calculated to throw light upon it. As was said in Carroll v. The Commonwealth, 84 Pa. St. 107: “We must look at the real competency of the evidence, and not at the order of its reception; and when we find that it was all finally competent, we will not reverse because of the time or order of its introduction.” Had the evidence been illegal and improper, of course its admission would have necessitated a reversal of the judgment. Draper v. The State, 22 Texas, 400; McWilliams v. The State, 44 Texas, 116; Preston v. The State, 4 Texas Ct. App. 186.

. 2. Another most radical error, it is contended, was committed by the court in allowing the witness Kilgore, over objections of defendants, to give evidence of certain conversations which took place prior to the killing of George Brazel 1, between witness and W. D. Meador, who, though jointly indicted with them for the murder, was not on trial, and which conversations were not had in the presence and hearing of defendants. The grounds of objection to this testimony may be stated thus : —

1. No conspiracy between Meador and these defendants had been previously established, or shown to exist, and therefore his acts and declarations were not binding upon them.

2. That the declarations of Meador simply showed a willingness and intention on his part to do certain acts, without showing that there was any present agreement and conspiracy between himself and these defendants, or any other persons, to do the acts spoken of.

3. That the plot or conspiracy, if any such was developed by Meador in these conversations, was a plot or conspiracy to murder different persons, and at a different time from the murder for which defendants and their co-defendant Meador were indicted in this case.

4. That the plot or conspiracy, so called, as developed by Meador, had never been executed.

A brief statement of the facts bearing upon this issue will illustrate its force and character. Meador was deputy-sheriff of DeWitt County, and as such officer had in his hands for execution a writ for the arrest of Theodore Brazell and one William Humphreys. On the Friday evening before the Tuesday upon which the murder was committed, Meador summoned the witness Kilgore and others as a posse, to go with and assist him in arresting these parties. William Cox and Augustine, two of the parties also subsequently indicted for the murder, were of the posse. After Cox and Augustine got with the party, they all started to the house of Hardin, the man at whose instance the writ of arrest had issued because Brazell and Humphreys had threatened his life. Two separate and distinct conversations occurred between Meador and the witness, which are detailed by him, —- the first as they were riding over from William Cox’s to Hardin’s, and before they reached Hardin’s. Testifying on his direct examination as to this conversation, the witness says: “We [he and Meador] were riding together. He said he was willing or going to kill them if he could get any one to go with him. He was talking about Theodore Brazell, young Humphreys', and one or two of Ainsworth’s boys. * * * He said he was willing to kill these parties. * * * If he could get somebody to go with him, he would go out to Shiloh Church some night when church was there, and each man that would go with him was to single out his man, and march them off from church and burst him open. That is what he said. This was said as we went to Hardin’s.” Witness did not know whether defendant Cox, who was riding close by, heard this conversation or not.

Arrived at Hardin’s house, they remained some time, during which Meador, Hardin, and Augustine went behind the house and had a conversation amongst themselves. When they came back, they told the witness Kilgore they were not going to do anything, and Meador said he would not make the arrest, because Hardin would not testify against the parties. Shortly after this, the deputy-sheriff, Meador, and his posse started on their return to the house of Augustine. It was on the return trip that the second conversation occurred between Meador and the witness. Witness says: “ Going back to Mr. Augustine’s, Meador told me that they were going to kill the parties,— Humphreys, Theodore Brazell, and the two Ainsworth boys. He told me they were going on Monday night to do it. He told me this Friday evening. He told me the next Monday they were going to do the killing.” To the question “ What was the expression of Meador? ” witness replied, “ He said ‘ We are going to kill them.’ He said ‘ We are going to do it.’ He did not say who was going with him. Meador told me that Augustine was going with him. He told me he was right in for it.” Witness is satisfied that Cox did not hear this conversation. In another portion of his testimony the witness says that Meador told him that Cox was going with him to do the killing. This is in substance a résumé of the principal points in the evidence objected to.

Now, the first objection is that since a conspiracy ipso facto had not been established, this testimony was inadmissible. Mr. Phillips says: “It is an established rule that when several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the original concerted plan with reference to the common object is, in contemplation of law, the act of the whole party.” Ph. on Ev. (5th ed.) 168. And proof of the plot or combination must precede proof of declarations made by either of the conspirators, though the acts and declarations of separate parties in the.planning or execution of the scheme may be shown in evidence of the common design. The State v. Simons, 4 Strobh. 266; Regina v. Mear, 1 Eng. Law & Eq. 581; The State v. Ripley, 31 Me. 386; Glory v. The State, 13 Ark. 236; Hardin v. The State, 4 Texas Ct. App. 366.

The correct rule is also stated by Mr. Greenleaf. He says : ‘ ‘ The same principles apply to the acts and declarations of one of a party of conspirators in regard to the common design as affecting his fellows. Here a foundation must first be laid by proof sufficient, in the opinion of the judge, to establish prima facie the fact of conspiracy between the parties, or proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan and with reference to the common object is, in contemplation of. law, the act and declaration of them all, and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed in law a party to every act which has before been done by the others, and to every act which may afterwards be done by any of the others, in furtherance of such common design. Sometimes, for the sake of convenience, the acts and declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the cause. But this rests in the discretion of the judge, and is not permitted except under particular and urgent circumstances, lest the jury should be misled to infer the fact itself of the conspiracy from the declarations of strangers. And here, also, care must be taken that the acts and declarations thus admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of its objects. If they took place at a subsequent period, and are therefore narrative of past occurrences, they are, as we have just seen, to be rejected.” 1 Grreenl. on Ev., sect. 111.

Mr. Roscoe says : “After the existence of a conspiracy is established, and the particular defendants have been proved to have been parties to it, the acts of the conspirators may in all cases be given in evidence against them.” Roscoe’s Cr. Ev. 387. Many recent decisions have gone further, perhaps, in laying down rules and in discussing the law of conspiracy, and we do not deem it inappropriate in this connection to call attention to some of these cases as illustrative of and shedding much additional light upon the subject.

In The People v. Brotherton, 47 Cal. 388, it was held: “Where two are jointly indicted, the prosecution may on the trial prove the declarations and acts of one done in the absence of the other, before proving the conspiracy between the defendants, provided proof of such conspiracy is afterwards made.”

In The State v. Winner, 17 Kan. 298, it was held that “ ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy itself should first be established prima facie, and to the satisfaction of the judge of the court trying the cause; but this cannot always be required. It cannot well be required where the proof depends upon a vast amount of circumstantial evidence, — a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.”

In The People v. Geiger, 49 Cal. 643, it was held that if two are jointly indicted for murder, and are tried separately, and on the trial of one there is testimony tending to show a conspiracy between them, the declarations of the one not on trial, made before the killing, may be received in evidence. And the conspiracy to commit a crime being proved on the separate trial of one of the conspirators, the jury are to give the same weight to the declarations of the co-conspirator not on trial as they would give them if made by the one on trial.” See also The People v. Gotta, 49 Cal. 166.

Now, when we turn to our statutes, we find that they declare that " all persons are principals who are guilty of acting together in the commission of an offence ; ” and that, " where an offence is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act; or who, not being present, keep watch so as to prevent the interruption of those engaged in committing the offence, such persons so aiding, encouraging, or keeping watch are principal offenders, and may be prosecuted and convicted as such.” Pase. Dig., arts. 1809, 1810. To our minds, a great deal of the trouble, confusion, and discussion with regard to conspiracy, where two or more are charged with the commission of crime, might and can be obviated by keeping in mind these statutory provisions. If the parties can be identified at the time and place as joint participants in the commission of the crime, why the necessity of going behind that fact to establish a conspiracy to do the act already accomplished, and for which the law denounces them as principal offenders and liable to punishment as such? Why want a better predicate, or any further evidence even of a conspiracy, if their presence and guilty participation is already established ? To us it seems too plain to admit of argument, that, when two or more are found acting together ■with an unlawful intent in the commission of an offence, the common design and acting together makes them ipso facto conspirators,— endows them as a body with the attribute of individuality, — merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders in pursuance of the agreed plan, and tending to throw light upon it or the motive or intent with which it was committed, is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted, and tried jointly or separately. 1 Bishop’s Cr. Law, sect. 432; Kelley v. The People, 55 N. Y. 566; 2 Whart. on Ev. 1205; 47 Ind. 568. This rule in nowise conflicts with the doctrine enunciated in Burrell v. The State, 18 Texas, 713; Draper v. The State, 22 Texas, 400; Wright v. The State, 43 Texas, 170, or Preston v. The State, 4 Texas Ct. App. 186, because the ruling in each of those cases excluding the declarations was based upon the ground that there were no such proofs of complicity as would warrant the declarations of the one party against the other.

But it is said that the declarations of Meador simply showed a willingness or intention on his part to do certain things, without showing that any one else had agreed to act with him at that time. This objection is only applicable to the expressions used by Meador in the first conversation with Kilgore, on the way from Cox’s to Hardin’s. Upon mature reflection, we are of opinion that this testimony was not admissible under any rule of evidence, but was directly in conflict with all the known and recognized rules. The general rule is that “ the evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design, — what was said by them before or afterwards not being within the principles of admissibility.” 1 Greenl. on Ev. 894.

A case directly in point is Fouts v. The State, 7 Ohio, 471, where it was held that “ the declarations and admissions of a party made in his own behalf and detailing what he personally intends to do, but not in furtherance of any concerted action with others, are not admissible in evidence against an associate in crime, although he and each associate may afterwards engage in and be indicted for the same criminal act to which the declarations and admissions related, and although it may also be proved that before making the declarations the two had jointly arranged to commit the identical act.” We believe that the first proposition contained in the extract quoted is sound in reason and law; but we do not concur in the latter. For, in our opinion, if it be proven that before making the declarations the conspiracy to do the act had been agreed upon and entered into, such declarations would be both legal and admissible. Asimilar* question arose in The People v. Gorham, and the testimony was held illegal; the court saying, “ It was a mere statement of his own intention to commit a crime with Bowdish,”— Bowdish not being present, and no conspiracy having been proven to exist at the time. 23 N. Y. 93.

The admission of this testimony would of itself alone require a reversal of the case, for the settled rule is that “the admission of illegal evidence of an important fact, material and pertinent to the issue, and which is additional to other facts legally in evidence, is erroneous, and a conviction will not be permitted to stand, however certain it may be that the jury would have found a verdict of guilty upon other sufficient evidence adduced on the trial.” McWilliams v. The State, 43 Texas, 116.

With regard to the two other objections to the testimony of Kilgore as to his conversation with Meador, which we have pointed out above, we deem it only necessary to say that, as urged, the objections are not tenable. “ If two or more combine to do an unlawful thing, and the act of one, proceeding according to the common plan, terminates in a •criminal result, though not the particular result intended, all are liable.” 1 Bishop’s Cr. Law (4th ed.), sect. 435; Hannah v. The People, 86 Ill. 243; Brennan v. The People, 15 Ill. 511; Williams v. The State, 47 Ind. 568; Gassenheimer v. The State, 52 Ala. 314.

The last question which we propose to notice is one raised for the first time since this case was pending in this court upon appeal, and only raised here for the first time on the •motion for a rehearing. This question goes to the sufficiency •and validity of the indictment.

It is a provision of our Constitution that 64 all prosecutions shall be carried on in the name and by the authority -of 4 The State of- Texas,’ and conclude 4 against the peace and dignity of the State.’ ” Const., art. 5, sect. 12. Our statute also prescribes the requisites to an indictment, the first of which is 4 4 That it shall commence 4 in the name and by the authority of the State of Texas,’ ” and the eighth, The indictment must conclude 4 against the peace and dignity of the State.’ ” Pasc. Dig., art. 2863; Rev. Code Cr. Proc., art. 420. The indictment in this case, both in the copy set out in the transcript, and in the original which we have had before us for inspection, concludes 44 against the peace and dignity of the statute,” instead of 44 against the peace and dignity of the State.”

It has been ably argued by the assistant attorney-general that these words are mere words of form, — are not a part of the substance of the indictment, — were not a matter material to be found by, and not a part of the finding of, the grand jury, but were solely a matter of pleading ; that, in order to avail of such defect, an exception to the indictment should have been taken in the court below, and, not having been taken either by exception or motion in arrest, that the verdict has cured the informality, and it cannot be inquired into or taken advantage of for the first time on appeal. We confess the question has been one of no little-embarrassment, and in our research we have spared'no pains in hunting up and collecting all the authorities where the subject has been discussed and adjudicated in the courts of this country. The difficulty in obtaining the authorities, for some of which we have had to send outside the State, has occasioned the delay in the decision of the case. We-believe that we have at length consulted every case in the United States wherein the question has been reviewed, so-tar as the authorities were accessible.

Our conclusion is that the previous decisions of the courts of this State, which decisions have been controverted in their applicability to the status of this case, are authority in point, aud they, according to the view we take of the subject, are abundantly sustained by the great weight' of authority which we propose to cite from other sources, and which establishes the proposition that, whilst the constitutional requirement is, critically speaking, matter of form, it is also-nevertheless matter of substance by virtue of the fact that it is part of the Constitution, no declaratory portion of which are the courts empowered with authority to declare only formal when the language is positive and unambiguous. However much we may feel disposed to consider a matter prescribed by the Constitution ill-advised or useless, — however much we may be inclined to doubt the propriety of inserting into the organic, fundamental law of the State-requisites of forms with regard to procedure and practice in the courts, — the answer is, the people themselves, the source of all power and authority in a republican government, have spoken it; and with regard to their ipse dixit, when contained in the Constitution, which is but the expression of their sovereign will, the courts can only bow in humble obedience, and say “ ita est scripta.” If plain and unambiguous, no ordinary rules of construction are applicable to these expressions ; their inherent, binding authority is superior to all ordinary rules, As was said by Mr. Justice Emmet, and concurred in by Judge Cooley: “It will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory and not imperative.” The People v. Lawrence, 36 Barb. 186; Cooley’s Const. Lim. (3d ed.) 82.

In The State v. Durst, 7 Texas, 74, the court say: “ It will suffice, for the disposition of this case, to observe that it is a positive requirement of the Constitution that the indictment conclude ‘ against the peace and dignity of the State.’ Hart. Dig. 62, sect. 9. It is scarcely necessary to say that the courts have no authority to dispense with that which the Constitution requires.”

In The State v. Sims, Chief Justice Roberts says : “ The indictment omitted the conclusion required by the Constitution : against the peace and dignity of the State.’ It was excepted to, and set aside by the court; but not on that ground. That is not one of the exceptions to matters of substance specified in the Code of Criminal Procedure. In the case of Durst v. The State, it is said ‘ the courts have no authority to dispense with that which the Constitution requires,’ in sustaining an exception of this kind made to an indictment. 7 Texas, 74. It has been held to be a fatal defect, whether specially excepted to or not. The State v. Lopez, 19 Mo. 254; The State v. Pemberton, 30 Mo. 376. It is an objection so obvious that if we were in doubt about sustaining it under our Code, it would be useless to send it back to be made in the court below.” 43 Texas, 521. In Holden v. The State, 1 Texas Ct. App. 225, it was held that an indictment which did not conclude “ against the peace and dignity of the State ” was fatally defective.

In Rice v. The State, 4 Heisk. 215, it was held that “ an indictment that does not conclude against the peace and dignity of the State ’ is a nullity. It is a positive injunction of the Constitution itself that such shall be the conclusion of every indictment. It is therefore a matter that cannot be affected by legislation, and a defect that cannot be ignored by the courts. An indictment without these words is not an accusation of crime, and not an indictment in the sense of the Constitution. No conviction upon such an indictment could be permitted to stand, and a prisoner cannot waive his rights in this respect, as it is the imperative mandate of the Constitution that all crimes shall be prosecuted by presentment or indictment, and that all indictments shall conclude against the peace and dignity of the State.’ ” “ The conclusion against the peace and dignity of the State ’ cannot be dispensed with.” 1 Green’s Cr. Rep. 266. The same doctrine is emphatically declared in Thompson v. The Commonwealth, 20 Gratt. 724, and Carney's Case, 4 Gratt. 546.

In Nicholas v. The State, 35 Wis. 308, the court say: “ The Constitution (art. 7, sect. 7) provides that ‘ all indictments shall conclude against the peace and dignity of the State.’ This formula is a mere rhetorical flourish, adding nothing to the substance of the indictment, and it is difficult to see why the mandate for its use was inserted in the Constitution. Yet it is there, and must be obeyed. We enforced obedience to it in Williams v. The State, 27 Wis. 402. Of course the accused cannot be possibly prejudiced or in any manner misled by the omission of the formula from an indictment, and the use of it is held necessary for the sole reason that the Constitution ordains that it shall be used.”

But a case directly in point, and meeting the positions taken by the assistant attorney-general in this case, is Lemons v. The People, 5 W. Va. 755, where it was held — the indictment concluding “ against the peace and dignity of the State of W. Virginia”—that the indictment was not sufficient. Further, as stated concisely in the syllabus, “ When the Constitution of the State requires an indictment to conclude in certain form and words, the indictment is not good unless it concludes in the exact language of the Constitution. And a prisoner failing to demur, or moving to quash, or moving in arrest of judgment, on an indictment not in the exact language of the Constitution, cannot be held to have waived his right to make objection to the indictment in the appellate court, the right being a constitutional and not a personal right.”

In other States, it has been held that the exact words are not necessary if words in substance and of like import are used. Anderson v. The State, 5 Ark. 444; Rogers v. The Commonwealth, 5 Serg. & R. 462; Yancey v. The State, 1 Const. (So. Car.) 237; The Commonwealth v. Young, 7 B. Mon. 1; The State v. Johnson, Walk. (Miss.) 392; Greeson v. The State, 5 How. (Miss.) 33; The State v. Foster, 61 Mo. 549; The State v. Kean, 10 N. H. 347; The State v. Washington, 1 Bay, 120; The State v. Anthony, 1 McCord, 182. In Lopez v. The Stale, 19 Mo. 244, the conclusion was “ against the peace of the statute, and of the statute in such cases made and provided,” — a conclusion very similar to the one in this case, and the indictment was held bad.

We have found but two cases where such defects were held mere matters of form. In Cain v. The State, 7 Blackf. 612, an indictment concluding ‘ against the peace of the State” was permitted by the court to be amended by the prosecuting officer so as to read “ against the peace and dignity of the State.” The other case is that of The Commonwealth v. Paxton, Court of Quarter Sessions of Chester County, Pennsylvania, published in the Legal Intelligencer (Philadelphia), November 14, 1879, where it was held that the words “ against the peace and dignity of the Commonwealth of Pennsylvania” are words of form and not of substance, and that the fact that they are required by the constitution makes them no less so.

Our opinion is that the constitutional conclusion is one both of form and substance combined,— substance because the Constitution requires it; and may be availed of at any time.

For the reason that illegal and inadmissible evidence was allowed to go to the jury, over objections of defendants, and because the indictment is fatally defective, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.