56 S.W. 64 | Tex. Crim. App. | 1900
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.
By the witness Hayes, the State was permitted to prove that in the fall of 1897, before this killing, which occurred in January, 1898, George Hammil told witness Hayes that defendant had agreed to pay him (Hammil) $50 to testify as a witness in behalf of Newton's son in a case then pending in Kaufman County, wherein said Newton's son Bob was charged with cattle-theft. The bill further recites the evidence shows that neither Newton nor Hammil, at the time said statement was made, knew deceased, Peel. It was further shown that Hayes never told Peel of this conversation until about a week before the killing of Peel, and Hayes testified that he never told any person of this conversation except Peel; and it was further shown that the testimony disclosed that neither Newton nor Hammil knew or had ever been apprised of the fact that Hayes had told Peel of the statement referred to; and it is further shown that Newton was not present when this statement was made by Hammil to Hayes. It was then objected that this testimony was irrelevant and inadmissible to prove any issue in the case, (1) because defendant was not present when the conversation between Hammil and Hayes occurred; (2) that the evidence was not competent to prove a conspiracy, because a conspiracy can not be proved by the acts and declarations of a coconspirator, but must be proved aliunde; (3) this was a statement of a past occurrence, and not made in furtherance of the common design; (4) it was injurious to appellant, in that it presented him to the jury as a man guilty of bribery. It is well settled, by a long line of decisions in this State, that overtures to purchase witnesses, and matters of that sort, made by others than defendant, without his knowledge and consent, can not be used against him upon his trial. See Barbee v. State, 23 Texas Crim. App., 199; Maines v. State, 23 Texas Crim. App., 568; Rushing v. State, 25 Texas Crim. App., 607; Nalley v. State, 28 Texas Crim. App., 387; Favors v. State, 20 Texas Crim. App., 155. Nor, as made by the bill of exceptions, could this testimony be admitted against appellant as showing a conspiracy. Dungan v. State, 39 Tex.Crim. Rep.; Rhodes v. *614 State, 39 Tex.Crim. Rep.. The testimony was clearly inadmissible.
The other matters complained of will hardly arise upon another trial. For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
BROOKS, Judge, absent.
