51 S.W. 375 | Tex. Crim. App. | 1899
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of thirty-five years, and appeals.
During the trial the State was permitted to prove that Abe Pryor, appellant's brother, was killed about two years before by Gibson and Charley Williams; that Gibson Williams was waylaid and killed about one year ago, and that defendant and his brother-in-law Brown were arrested on suspicion of the murder of Gibson Williams. Appellant was not indicted, however, for the murder of said Gibson Williams. Objection was urged to this testimony, on the ground that the defendant was in no way connected with the killing of Gibson Williams, and that *645 said testimony was irrelevant, and calculated to prejudice appellant's cause before the jury. We believe the testimony as to Gibson Williams should have been excluded upon appellant's objection. The testimony as to the killing of Abe Pryor by Gibson and Charley Williams was permissible, as it tended to prove motive on the part of appellant for the killing of Charley Williams. The court permitted Lipscomb, Crook, and Greer to testify to a confession or statement of defendant. In the warning given, appellant was told that any statement he should make might be used "for or against him." This is not such a warning as is required by the statute. Guinn v. State, 39 Tex.Crim. Rep.. Exception was also reserved to the confession of Joe Sullivan, to the effect that he killed deceased by shooting him through the window, and that he had agreed with Will Pryor (appellant) to "case" deceased; that should deceased come out the front part of the house, Will Pryor was to shoot him, and he (Sullivan) was to go around the house and shoot him through the window. The warning given as to this confession was the same as that given defendant, to wit, that whatever statement he might make could be used "for or against him." This is not such a warning as is required by the statute.
We would observe further that at the time these confessions were made the parties were under arrest. It was subsequent to the killing. And, being under arrest, the statement made by one as against the other could not be used. If defendant was present when Sullivan made the statement implicating him, being under arrest, he was not bound by the statement, nor called upon to deny it, and, being subsequent to the arrest, it was not such an act, declaration, or confession by one coconspirator as could be used in evidence against the other as original testimony. McKenzie v. State,
There is another question suggested that we deem unimportant, to wit, that, under the facts, the court should have charged the jury with reference to the law of accomplices, inasmuch as the testimony suggests that he was an accomplice, and not a principal. We do not agree with this contention. Appellant, under the facts, was clearly a principal. For the reasons indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded. *646
