*1 233 1905.] The v. State. and cents gave fendant to witness Siewert. Siewert took Defendant any.” if you said, whisky me a “bring quart witness same the that, day, perhaps and sometime money, back of his on workbench in the whisky found a bottle of a sitting whisky he who put He further states that did not know shop. there. Defendant was there; defendant did tell him he put settlement, advanced by witness, money for and in working making work done de- allowed as a credit on witness to defendant was whisky. for fendant—thus it did not toward showing go payment asked them to get and money other gave parties Prosecutor says his work- whisky he found and this was done before whisky, as to who really whisky are left at sea placed bench. So The other evi- parties. it was defendant or workbench, whether is re- the verdict, judgment to support insufficient dence being cause remanded. versed and remanded.
Reversed Addison May 10,
No. 2939. Decided 1905. —Murder—Evidence—Judgment and Writ Possession—Functus Officio. 1. murder, prosecution was evidence that for homicide re- Where part attempt law of officers to execute a an writ of sulted from possession parents against living that he of defendant and was a minor time, conspiracy entered them with to resist ceedings admitting pro- there was no error evidence all the said including judgment original suit connection based, as also the order sale and said the said writ writ on which judgment stranger itself; writ, the said even would be bound officio, being functus writ not Deceased—Desisting Mission of Offi- Gestae—Evidence—Official 2.—Same—Bes cer. grew prosecution attempt murder, which out of In a for an parents possession against defendant, law to sulted show the mission said a writ of re- execute killing competent officers, it was in the of one of the State to place going of the said officers in was held writ; purpose their execute said and what transpired just premises, the owner of the before the homicide between father defendant, yard, defendant, and the said in view of of must have known officers out who surroundings, mission from the facts and officer’s official gestae espe- evidence, and admissible in of the res transaction cially opportunity purpose was afforded said officer to be- disclose by defendant, shot down fore he was could such circumstances defendant resisting not claim self-defense defense of his mother in officer. Wife—Conspiracy—Statutory 3.—Same—Common law Rule—Husband and law —Evidence. prosecution While under commоn the rule at law is not main- wife, person, tainable third the husband unless some in connection them, join applicable conspiracy—which to be rule seems to a con- spiracy pure may simple and not to act which the a consummated merged—yet by abrogated, of Texas rule is virture of the statutes such may conspire, person, and husband and wife without the intervention of a third 48 Texas Criminal Efforts. murder; to commit being either is offense, tried for the consummated *2 conspiracy, doctrine of so far as concerned, ap- the rules of evidence are is plicable system, under our though either, and acts or declarations of in' made other, the absence against other, are admissible pending such if done the conspiracy and in thereof. furtherance 4. Co-Conspirators. —Same—Evidence—Acts and Declarations of by The rule laid down this court in the of case Cox v. 8 Texas Crim. App., proof persons 254: that when acting together the shows two were with an offense, unlawful in intent design the acting commission of an the common and together ipso conspirators; makes previous and facto that the acts and principal offender, pursuance declarаtions of each agreed such in plan, tending light upon it, to throw or the motive or intent with which legal was committed is and should be received as evidence each and all, obtains, indicted, prosecuted jointly separately, whether only tried still light but has decisions, been extended in of more recent which hold conspiracy on that a shown, trial for murder where a is the acts and declarations co-conspirators prove purpose of design, are admissible to the common and intent conspirators, acts, etc., of whether such were made before or after the conspiracy, formation of the or whether the same were before made the de- into, conspiracy. fendant trial on entered 5.—Same—Case Stated Under Above Rule. murder, Where on trial a of defendant for the evidence showed parents principals therein, his inasmuch as all three of them were on the
ground participated therein, time the homicide was committed and there admitting was no in in error the acts and declarations of evidence defendant’s parents defendant, legal pro- in made the absence of with reference to certain ceedings by disрossessed property by which of their of the officers homicide, the law and which occurred some time before the and in which peacefully proceeding again; threatened that submit would to such showing parents repossessed further evidence that defendant’s had of themselves property dispossess he acted with said them when said officers came to parents officers; especially defendant’s a second time and he killed one of said charge testimony necessity in where the court his limited the effect of prior proof conspiracy. of a of Co-Conspirators Conspiracy 6.—Same—Acts Declarations of After Formed. theory murder, in trial State was Where a of the and that defendant conspiracy had into father mother to resist entered a with his the execution enough testimony possession against parents, of his and there was of a writ conspiracy, go admitting in did there no error that he enter into such testimony procuring by of arms and ammunition involved the premises the latter moved back from which he been his father after removed fendant; had writ, joined of said after he had been there the de- virtue testimony regarding also the doоrs and win- barricade subsequent being wheat, with sacks of these acts the forma- dows the house thereof; consiracy especially and in furtherance where the court tion limited than the law favorably testimony in such with reference to the rule more required. —Same—Charge of Court—Third Parties Not Concerned. 7. theory had trial the State was that defendant Where a for murder the parents conspiracy in the execution his to resist the officers attempt entered part possession, third certain and there writ of a parties, pos- writ, property subject to retake to said who were interested possession thereof, thereof, parents after defendant and his had taken session and the knew at the time was evidence that defendant codefendants attempting dis- of the law who were homicide required to a possess with reference was not the court parties any attempt to retake third to thwart such of defendants property. possession of said 1905-1
8.—Same—Evidence—Rebuttal. charged Where trial for murder which defendant possession, a writ of in- officers of the law executiton of had resist co-conspirators had had trouble with certain third troducеd subject property parties officers, to said writ and not with the who were interested by defendant, it was admissible for the killed State to of whom was one parties way said and codefendants amicable of rebuttal rela- show suggesting tions, and did third violence that all the said get possession attempt by prop- them to of said to an antecedent with reference erty. Against Counsel—Judgment Conclusive Homestead. 9.—Same—Advice no error to exclude defense reference to There was subject property pos- counsel, effect that to the writ of advice concerning trouble arose that which the resulted homicide session and was correctly so, jury by court, homestead, issue was withdrawn judgment upon which the said was based writ eliminated that question defendant for the murder of one of the officers at- trial of who *3 parents, .charged tempted defendant’s who were to execute said writ resisting slaying conspiracy for in a said officer him. codefendants Exceptions Contradicted the Record. —Same—Bill 10. that all the of defendant’s witness with record showed Where the of counsel which was admissible and which he contended to advice -reference admittеd, exceptions an issue. the bill of fails to raise in fact was Case—Charges Favorable to Defendant. —Same—Fact 11. opinion a of defendant for enter- held to sustain conviction for evidence See conspiracy parents ing in his to resist the officers of the law into a slay necessary, possession and that de- and to them a writ of execution pursuant to such and not of said officers slew one fendant charge although mother, a submitted on self-defense the court his defense mother, charge manslaughter, a of his also defense of defendant’s behalf both probably than the evidence called for. more favorable of which Charge. Charge—Supplied —Same—Requested Defect of Main 12. court, charge for murder of an officer in the trial of defendant a A possession against duty discharge of a writ of in the execution of his' lawful co-conspirators, charged parents as codefendants who are the defendant’s agreement or into an if defendant entered in effect told which in resistance of the writ to kill the officers his mother father or either of said father the acts and declarations possession, could consider then of against injuriously subject criticism, de- defendant, could riot affect while if he entered into fendant, is irresistible conclusion special parents; besides the instruc- of his both so with did one with tion tion guarded against sufficiently given, such construc- was which of defendant charge. main Degree—Charge of Court. in The Second —Same—Murder 13. degree charge connection in the second opinion on murder See requested charge, the defendant and those portions the court’s other 699; State, Rep.; Reviewing 83 S. W. v. Harrison sufficient. was 46 Texas submitted 737; Rep., Spivey State, Rep., 511, v. 81 S. W. State, Crim. Ray v. 444; State, Rep., 45 Texas Crim. 496, Pollard Rep., W. 77 S. Crim. Texas 45 Rep., 121, 953. W. Rep., S. Doubt. —Same—Reasonable 14. sufficiently pre- doubt holding reasonable opinion See court. sented before Tried below of McLennan. Court the District Appeal E. Scott. Hon. Sam ¡Reports. 48 Texas Criminal from a conviction
Appeal of murder in the second degree; penalty, twenty-five years imprisonment the penitentiary.
The states opinion the case. Yantis,
John B. Durrett and J. E. for appellant. Martin, Howard Assistant Attorney-General, for the State. Appellant was HENDERSON, Judge. convicted of murder second assessed at confinement degree, punishment in the peni for a term tentiary hence this twеnty-five years; appeal. j A branch of this case to wit: Catherine Smith v. 46 Texas Crim. 267; 10 Texas Rep., 984, Ct. before court at former Rep., term. The facts on trial were in a same as on the general way present McLennan, then, trial. .Since has been the venue removed County, from conviction The appeal prosecuted county. facts show that T. Catherine Smith were husband and wife, their son, and Addison Smith (appellant) being young man about farm in were owners of a Bell grown. Smiths County, some thirteen from Belton. twelve or miles that Smith be appears homicide, came time and executed a indebted some prior mortgage This trustee deed mortgage deed of trust premises. other instruments to a some Pending this, relating stay foreclosed. the sale was parties, between the postponed sale were executed to have been rendered in appears for some time. The favor judgment *4 v. T. Company of the Life Insurance E. Smith and Union Central transferred to one M. Brooker. wife; subsequently J. this was transferred it was afterwards to Pendleton There some evidence that However, them transferred to Hall. these mat Brewster, by of the case. The land was finally in the disposition are immaterial ters At execution the the sale judgment. sale under sold an order of by On July 17th, became the purchasers. the Brewsters Pendleton the of said purchasers possession issued to put writ of possession executed, at least in on have been part, to appears This writ premises. the However, or two after execution partial a day July. 20th E. and Catherine from the of T. Smith the removal writ and Before the return and regained possession. returned they premises, in the hands of the they it was still and while writ, day of from ousting execute the writ by further Smiths on to were called and while on August 6th, this on attempted officers possession. writ, to State’s according execute the to endeavoring premises, by to evidence offered According occurred. the homicide theory, re and Catherine Smith T. E. Smith that when insisted it is thereof, possession they actual and regained premises to turned There from regaining possession. the officers resist together conspired advice from counsel that had show they tending evidence is some the same could officio; and that functus possession writ of The State. Smith 1905.] short resist it. A were authorized to they executed, be again they joined regained possession prеmises, while they There is tes- from Arkansas. who returned Addison Smith (appellant) ammunition arms and they prepared to show timony tending windows the doors and others, also barricaded they resist their posses- to defend wheat to unable them sacks of the house with and Grubbs homicide, the Sparks, the day sion. On or five wagons four the premises, being preceded went to (deceased) from and their property the Smiths sent for the purpose removing the prem- the wagons approached It is in that when place. evidence T. some water. in front of the and asked ises, they stopped gate hand, motioned with a in his gun out the gallery E. Smith went house, from the yards to a well or some spring, them to around go at the house for the Smiths) they did. Sanders (attorney came up. and Grubbs Sparks out about time at the time. He came time About this to the gate. house and came out .Smith conversation Smith. had some and Grubbs left. Sparks Sanders of pos- re-execute the writ had no right time he insisted they At this and they hoped told him had come for that They they purpose, session. con- no evidence not interfere with them. There is he would had no they but insisted process, right for them to execute sented had but he did call on writ, officers told they do so. The and it it. started towards the They house, appears them to produce to the house. The officers undertook to prevent return attempted of him. the house ahead When by getting him from going near the seemed to very house, Sparks be endeavoring to approached house; into the and in getting the meantime Smith prevent Grubbs and around to the door. hurriedly gallery, went He passed door, almost two shots were immediately fired. The par- of the homicide were house at the time Mrs. Catherine ties in the these were seen Both of the officers: Addison Smith. out bed, at them window while looking lying house; approached and as Mrs. gate near door at them. Ho eye-witness the screen testified to through looking effect, stated, who that he was homicide, lying except appellant, also on the shotgun lying bed; there was bed, on the *5 he made house, in the to seize his hurriedly came when Grubbs door; in front of the that he saw the standing right who mother, over a table, gun. they While were struggling over the stoop parties and he it was Grubbs who had fired, thought a shot heard he struggling he grabbed that immediately shotgun a pistol; with his mother shot not so, was that he did inten- theory His deceased. and shot writ of but be- executing рossession, the officers resisting tion mother, attacked his and that violently had the officer believed he cause hand, was, the contention of State the other On danger. inwas she to resist the execution entered had parties that arms and for ammunition had prepared of possession; a writ Reports. 48 Texas Criminal and that when the officer Grubbs entered purpose, the house, no was afforded to announce his opportunity But purpose. that imme- Mrs. attempted Smith to seize a diately gun, which was lying on the table, and deceased attempted prevent her from getting it; using that he was fired immediately upon by pursuance of their previous design prevent interference with their possession. To State, of the theory rebut the preparation was made to resist the introduced evidence officers, appellant to show that had no pur- to resist the officers in pose executing any writ, but that preparations had been made to resist any attempt Pendleton and the Brewsters to It was possession. further regain urged as a part appellant’s defense had whatever been preparation made to resist the officers, if any, Smith, E. by T. Smith Catherine there was no рroof he showing knew of such or that he design participated therein. This is a suffi- cient statement the case order to present the in- legal questions on for reversal. sisted it was We believe competent to introduce, State done, as was
all the connection proceedings with and including judgment case of the Union Life Central Insurance Co. E. v. T. Smith and Catherine which the order of upon sale and writ of possession sale, order of issued, including sale-and the writ possession. It true that was not a to said party judgment proceed- his mother and father but were: he ings, being minor and living stranger them. Even as would be bound judgment the execution of could not resist writ. Catherine Smith v. held it was .that the writ was officio, not supra, functus having the return the same day expired, still in being the hands officer, could be further executed. see. Muphree Sheriffs, Wend., 1021, Hawley, Jackson v. 182; Crockett on citing Sheriffs, Executions, 575; Freeman on sec. 474-5-6-7. see. it is also connection insisted strongly
In this that what by appellant E. and the officers out in between Smith transpired yard house, left the just prior homicide, reference to the fact had that Grubbs the writ and had come possession, writ it, have been introduced should not against appellant, exеcute because of the officers statements to his father was not could present, this was a believe res gestee affect him. We himself owner of the transaction, being and T. premises, rate, the writ to him. At necessary to exhibit it is was only that he knew own reason to by appellant’s shown Grubbs, yard, Sparks officers. believe he believed Pendleton or the no suggestion There is come to take possession by violence. Appellant who had. Brewsters bed window. through from the is further watching came into house, that as soon as Grubbs im- the witness shown According appellant’s own began. the firing mediately Grubbs have opportunity been declared could *6 Smith v. 239 1905.1 and have exhibited the writ. purpose He says, over the struggle at once. If gun began there was no opportunity before deceased was shot himfor to have disclosed his he would purpose, not be to do required so. Appellant knew that the at the gate officers. He had seen the previously arrive, which he wagons must have known was for the purpose of his removing father’s goods from the He had place. declare, heard his father that the writ of possession officio, was functus and could not be executed the second time. In other he knew words, him with notice of enough the mission of the officers in com- As was said in ing Plasters v. premises. 1 Texas Crim. State, 673, if the whose arrest App., party attempted legal process knows the officer, and official character purpose of the arrest be lawful, otherwise it his submit, and resistance duty is unjustifi- able, though the officer makes no declaration of his official character purpose. Here, there was no time stated, afforded the officers to disclose their There was no for the purpose appellant. opportunity office!, after he into the house, came to disclose his purpose appel- lant or his mother. He shot was down once. Under such circum- stances could not claim or defense of self-defense, his mother State, an officer. Cortez v. 4 Texas resisting Ct. 1. As here- Rep., tofore announced it was for the competent State show mission their of the officers in was to going place, purpose execute between the owner of writ, and what transpired premises, T. E. out in the yard and the officers of the res gestee will not be heard to the transaction. was not Appellant say view, between the оfficers and his father in bound what transpired officer, opportunity afforded he entered especially to disclose to them. house, purpose 46 Catherine Smith Texas appeal On Crim. Rep., held 984, we that a Rep., 10 Texas Ct. commit mur- 267; husband and formed between wife. The question der could be and no were cited in discussed, support authorities not particularly to be now insisted that the rule understand it at com- We proposition. is, husband and wife could different; co- mon law there is our statute to nothing it. An change ; conspirators law text writers discloses that common prosecution examination the husband and maintainable wife is not only, for conspiracy law, as one are person esteemed presumed because 39; 2 Crimes, p. 1 Russell Wharton will. Crim. but one Cal., 107; Miller, State v. Clark et al. Peo. v. 1392; (Del.), Law, However, these same common law authorities assert Atl., 310. in connection with third person, if some husband the principle the rule above mentioned does not wife, join conceded case, if it be that the common rule law So apply. fact that a member then the of the con- here, vogue inis would mother, his father and take this case out together spiracy, however, would observe, rule. We law reference common *7 Beports. 48 Texas Criminal rule that as advised, common law so far are the authorities are of a speaking conspiracy pure and not of simple, consummated in the conspiracy act which be in the substantive might merged if it be offense. .But even conceded that common law at the husband could as joined and wife not be in the co-conspirators consummated act of murder committed so as to make declarations of one to do the act and in spouses pending pursuance thereof, made absence of the other, other, admissible such against we believe our statutes this State contravene the common law as rule such measure to render entirely inapplicable, especially when viewed in the of our in a civilization, advanced light great has the wife from thralldom she emancipated measure under which labored under the Our statute reference English system. formerly no who.may be makes engaged conspiracy, conspirators, inclusive, in favor of wife. Article 953 to 960, Code exception body laws, our entire each individual Viewing person Crim. Proc. article thereto, except is amenable statute. So we have provided Code, that a married woman who commits an offense Penal 36, providing her persuasion husband, or shall not in case be command death, life, but etc. This is an punished by may imprisoned married in favor of women. But such is raised question exception it is are this case. who Again, provided persons principals are in the commission of an offense. The together guilty acting or an but there is an in. accomplice; exception wife bemay principal husband that can be an favor, accessory favor of the neither her to- it that husband and wife may conspire we take the other. So murder; intervention of a third to commit a person, without gether, tried for the consummated the doctrine offense, is being either concerned, far as the rules of evidence are is appli- so of conspiracy, is, has That when the been once system. under our cable, murder, acts to commit or declarations established between other, the absence admissible made in either, though in furtherance thereof. other, pending if done such of the court permit- to the action reserved an exception Appellant tеstify Saturday evening, July that on Sparks witness J. ting in the presence out the first time, the Smiths moving while 18, 1903, Smith, who re- with T. E. he had a conversation others, of several him. to-day moving hurry like we were a big it looked marked, to him. He said happened ever worst thing it was the said He he his win- get would such a thing again, through would go before he he had three boys killed somebody; until and shoot chester if ever thing anything do the same them to to teach he was going not to remarked, ought “You Grubbs came them. that sort up not God, they ought “By replied, Smith officers.” To which blame same bill Also then.” targets up themselves put Pendleton, who testified that exception reserved that, writ, a day before of the first execution the time of during 1,905.] Smith v. The he was over field to going the tenants to get attorn to him,
found Mrs. but Mr. home, Smith was there; had her, a conversation with in which he her: told I “That she supposed knew we had land at the bought sale, and asked her if she and Mr. what decided to do it; about she she replied that did know what do, Mr. .Smith was going to knew she what she I asked her what going do; she she going do.. declined to This was to on say.” objected ground *8 hearsay, and could not affect he not appellant, That being present. antedated and the were not in any conspiraсy, remarks made furtherance of then any conspiracy Certain other existing. testimony writer, of the same character was introduced. the of opinion the this under while not have been admissible the doctrine of con- may as was held in however, Cox et al. v. 8 Crim. spiracy, Texas App., although testimony admissible, 354, because conspiracy existed, if even had then and existed it could be conspiracy hardly in that these remarks were made furtherance yet of conspiracy, the doctrine of such principals testimony under was admissible. trouble, case: our court said in “To deal of the minds, great discussion where two more regard conspiracy, confusion and with to or of crime, commission and can be charged might with obviated mind If can statutory in these keeping provisions. time as in and joint participants identified at commis- place fact crime, necessity behind-that to estab- why going sion already to do act and for accomplished; lish a which conspiracy as offenders and liable to punishment denounces them principal law want a further evidence even such? better Why predicate, their participation already and presence guilty of а conspiracy, ? us it seems too to admit that when plain argument, To established an unlawful intent acting together more are found two or commission and offense, the common makes design acting together anof as a them the attri- body conspirators,—endows facto ipso the act the act do of individuality,—merges bute each or such acts and declarations of itself; previous and that plan, pursuance agreed tending offenders principal committed, with which it was motive intent it or the light upon throw each admissible evidence against legal received should be is and or separately.” and tried jointly whether all, indicted, prosecuted Smith, his wife parties, three of Here above, facto, down con- rule laid ipso principals were the homicide was time the ground all on were They spirators. motive and intent of each therein, and participated- committed this, Besides court testimony. competent" of the principals as to testimony conspirators, by the effect limited its charge look to only could acts and they effect, jury instructing believed they others in case conduct declarations 48 Crim.—16. Vol. Reports. Texas Criminal acts, then been such as were further- only etc., had established, design. ance common
There is certain other which involves the testimony, procuring arms and T. E. he had moved back ammunition and after his son premises, joined (appellant). been And also the the doors win- barricade of testimony regarding acts, opinion, dows of the house with of wheat. These our sacks the formation subsequent unques- tionably thereof, in furtherance and were against appellant, admissible resist provided he became a the officers party conspiracy to attempting possession. to execute the This involves simply writ question not, enough testimony whether or there was go as to Addison entered into the con- whether (appellant) is abundant to the effect that both T. think the spiracy. We went back on the had de- wife, premises, E. Smith thereof the officers against any termined to hold possession attempt it, under the writ had been functus advised was regain officio, and could executed. tend- again True, not be there is did was with reference resisting show what ing attack on the and the Brewsters. anticipated Pendleton *9 the did not the State from other theory preclude Still insisting stated, there- was evidence to it. As there support theory, provided effect, the advice of counsel to they procured could be no question not re-execute of that it the officers could the writ was possession; his officers, T. un- functus officio. E. Smith wife knew they knew came. saw doubtedly Sparks They they Grubbs having brought were to remove prepared wagons purpose. out, testified, as is for the purpose parleying pro- Smith went Catherine the removal. Both Smith were against appellant testing in the Hot but yard. only so, of what was transpiring they view intrusion into the house. any Appellant were resist prepared side, looking his at what was by bed with shotgun lying the screen- was looking through in the Mrs. Smith yard. transpiring near on the table. conveniently had a gun at them. She also door knew that it were yard, knew who parties She as If entertained doubt Brewsters. Pendleton of his inquired mother, were he should these parties whom himself that he they man. states knew were He law-abiding prudent, facts before to take notice bound by tangible and was the record this defendant true throughout It is purpose. their testimony knowledge he disavows reticent. In his remarkably is him. But there are some things around facts transpiring obvious most contradiction, notwithstanding denial or challenge as to so plain facts sur- notice those held to take physical he will reticence to resist and mother of his father declared purpose which roundings in this is enough There at all hazards. the officers by the ejection and its of the pending conspiracy knowledge him with charge record The 1905.] and he cannot escape responsibility by that he
purpose, simply denying did not understand or the intent of his codefendants. know and purpose of his that all acts codefendants testimony indicating So or conduct after the formation of and in furtherance transpiring the conspiracy, thereof, was admissible him. court all guarded The properly course, theory of this and of testimony charge; appellant’s correct, that he then, was not party such testimony. not affected charge court, by any than of the court was more liberal to defendant he was even charge to, co-conspirators entitled even as to the acts of jury because of illus- be considered the purpose instructed that could they only motive, con- forming and intent of trating parties purpose become the law that such is, co-conspirators whereas acts spiracy, thе acts appellant.
In this contends that the court should have connection appellant at- with reference to to thwart instructed the retake posses- and the Brewsters to Pendleton tempt part on this but there was testimony line, sion. There was some admitted and, stated, retake attempt possession, on their or the it was not knew at the time of the homicide that Pendleton possession, that went for the purpose securing Brewsters not think court required the law. We do further on done. than was subjet of conversations detailed urged
Some admission objection on or had with Pendleton and the Brewsters, 6th, disposition. about in which manifested amicable July of this case, bring think under the circumstances proper, We it was the service attending salient facts forward .in matters even which antedated that. As first writ of possession, court there was explanation, stated introduced and his wife to the effect that Smith trouble having Brewsters, and that all Pendleton and did sug- *10 reference to an attempt violence was with antecedent to get gesting that court further states he believes the them. The tes- possession by amicable talks in was admissible these conversations timony In this concur. of this character of evidence. rebuttal with reference 14) There is bill of to exceptions (number a long certain of the witness testimony refusal to A. J. testimony, permit in eliminated that the court his explanation properly Harris. believe We homestead; that designation all the to testimony relating consideration was withdrawn testimony that of the portion do same. instructed not to consider the We jury, they homestead, of this circumstances not believe the question concerned, E. both T. as this case, cuts So far any, figure. rights whatever to the judgment, and his wife, were ad- to homestead with reference had may formerly have they same. to deny were estopped in decree. They judged Reports. 48 Texas Criminal Bill 15 is also number quite lengthy and is reserved to what appellant to was witness permitted prove by Harris. We are not clear as to purpose, bill, talcing explanation court, in therewith, connection occurs to us that all of the that was far admissible, so as the witness really Harris was concerned, he was testified, to state. Harris permitted according court’s explana- Smith, he advised after he had tian, moved back upon the officers would not premises and could not execute that writ time, the writ second (meaning after it was possession) fully executed. The same witness also testified that on the afternoon before said in a conversation with over killing, the phone,—Smith Belton,—he and witness told being Temple witness to regard out to them out of he did coming possession; the sheriff not' "put undertake it. think sheriff would benefit was Whatever to from the advice of it seems the court Harris, entitled permitted seen, It will be Harris however, to that while to disposed prove. his client that officers would not undertake advise to re-execute not to could he was careful advise resist the officers. writ, they them contends that on his shown Appellant urgently officers if to take or that in they attempted possession, to resist the he with codefendants had determined them that to prevent order that the case is not made officers; State’s out as slay court, will noted this connection that the be- appellant. a charge self-defense, on charge manslaughter, gave giving sides killed they told the believed Addison Smith substantially jury which an attack Mrs. Cath- the time deceased making but at deceased, to have a expectation caused defendant reasonable Smith, which erine to the said Mrs. Catherine bodily or serious injury of death fear killed de- reasonable fear he under such expectation Smith, acting favor him. How this given acquit ceased, they should telling tatamount It was conspiracy. of any regardless formed had been believe a conspiracy they might although if deceased yet, of said taking premises, .possession resist caused de- an attack Catherine made instance first her, he would injury bodily or serious death to apprehend fendant in this did not believe evidently The jury him. slay the right the plausible believe notwithstanding refused theory, line: testified on He homicide appellant. given account and could window, head near ,“I my the bed with across lying in his buggy After got Mr. Saunders were, plainly. where out see didn’t I talking, men standing two father my sawI attracted attention was and then two, my moment or notice moved closer up I noticed movements. their house, come to the trying to be father seemed and. my house, *11 moved his arms and him, and he folded upon men closed two him' would between get and house, they towards way and way on my I raised elbow up I think this, I noticed When house. 1905.] Smith v. The
so as to see better. In a few seconds close to the they got up pretty steps, man that I afterwards learned Mr. a Grubbs took stride rapid up and on the steps out gallery, my passed towards the sight door. After he from passed towards my sight door, my attention was called to mother. my She was two or three feet inside and directly front of the door, and seemed to the act moving her, door. About the time I saw Grubbs came through the door her, and she meeting threw both up hands front her, said : ‘Don’t you touch me. your Don’t hands on me.” And you put she back stepped towards the table at the front of the bed. In instant after she stepped back, over (both them) stooped table, and in an instant up raised and I saw the winchester rifle between them. by Mother had the stock with her gun hand right and by the barrel with her her left, and Grubbs seemed to have one arm, and his hand on the over her other hand. both gun They over the stooped table to came up get gun, gun was raised between and he commenced immediately trying wrench the her and force her back towards the gun partition door. I whirled off the and about the time I feet on the bed, got my floor I them near the heard and saw flash between report, partition door, and I my mother a sort of smothered scream. gave picked up once, off the bеd him at and he fell to the south- shotgun and fired at rifle west a little to the left. think winchester fell to the floor I I him; it was near him when I saw next. am not positive lying what became of mother when he fell. came to me shortly She after. my fired, I I turned and looked out the window to'where As soon as scuffling father the other man were and saw them over pistol. my few feet south of the steps, gallery east They just and this man had it the barrel pistol by father had my and covered this man other barrel the gun I cocked the handle. this, they time I did quit struggling and about the window, through between holding pistol them; stood there over pistol I the bed. her the double- gave was by where I mother came to my and we went out shotgun the winchester up and I picked barreled gun, to turn father this man loose. my told mother my gallery, on the out near pistol, gate, holding both together, walked They his and the man it in put loose pistol father turned and then my scabbard.” other facts there are certain order to understand did his Deceased not draw consideration. taken to be necessary pants, in the waistband left side on his found it was pistol; fired The gun killed. he was after vest, over. struggling and deceased Mrs. rifle winchester exclaimed, that Mrs. Smith witnesses two one or It also proven came out she at the time before either shooting, shortly home?” my I fight would tell you I “Didn’t the gallery, leave Sparks Sheriff she made her in hand gun shown also *12 Reports. 48 Texas Criminal Row, cannot claim of what
premises. ignorance transpired in his immediate at the time and presence before the homicide. just For the officer did not have time to make ought appears dec- laration of his intention before Mrs. Smith exclaimed: “Don’t touch you me; don’t hands on me.” And if we read this you put your she the table for the went to This witness correctly gun. she says the table at the back towards front of the in stepped bed, an in- after, stant over stooped both of them the table. However, when they raised he that his mother had the the stock with her up, says gun by hand her right left, barrel with Grubbs seemed to have arm; her one and to have his hand on the over her other hand. gun Row, this, if saw he saw that was at- evidently Grubbs her her to take the from to him. tempting gun away prevent shooting He knew win- officer; he was an had been watching through dow, there, and he is in as he un- held to know his purpose coming knew him with notice of such purpose. questionably enough As he relates, when he witnessed this of Grubbs get struggle from he Smith, fired, immediately Mrs. and he heard a shot gun away shot Grubbs. Rot to see whether or this, but without only waiting offiсer, his mother was turns and covers the other shot, immediately who was in father with his He his yard struggling shotgun. desist, his in on the officer joins going gallery, making mother tell declare, him leave the and hears her “Didn’t I making premises, these you viewing I would home.” We think that fight my jury, facts and other facts connection with facts, undisputed physical case, warranted in the de- fully disbelieving connected with the he slew deceased to deceased prevent fensive theory appellant—that credence to the mother; theory from his killing giving in order to was committed pre- to the effect that the homicide .State father mother from the premises vent the officersejecting appellant’s is, if Indeed the law appellant (which the writ of possession. with his in a conspiracy to show), engaged facts here tend presented possession the officers taking mother to father and prevent if necessary slay under the writ of premises possession, writ, then could neither them from executing in order to prevent the of- himself, mother or provided of his favor set self-defense up force. And we fail to see or excessive unnecessary did not use ficers force, with the resistance unnecessary record such excessive or in attempting to do expected would offered. did what an officer They in getting house, from getting E. Smith prevent sheriff approached If when into the house themselves. thereto; had consented him, demand of near the gate possession the writ of posses- the execution other if he was not words, opposing coure of- con- different sion, entirely him an we would expect avail, but was of officers duct. When he saw protestation towards advanced take possession intended to officer go him to expect (cid:127)house we would that purpose, 1905.] manner; him. peaceful Certainly door for necessary open
would him to inmates house to expect request permit enter; instead of his entire demeanor one of oppo- sition. endeavor According way ahead of to enter first. the house On get evidently *13 E. about- entered the T. door, to house and the time officers just “Look out boy,” uttered the Smith (appellant’s father) expression, which, hear, not of events states he did although appellant light very about must to be transpired time, appear significant, and and an the inmates of house suggests between understanding Smith, us, father. to all thаt was appellant’s Indeed, occurs Smith, and done by parties, appellant, wife and T. E. himself to yard, officers entered and after Smith presented against the officers and their done protested taking possession, E.T. the of- opposed concerted design. only protested taking writ; way ficers threw himself their possession the house; one of draw his entering the officers prevent his resistance; in order to endeavor to overcome grabbed pistol in his as soon as the other officer persisted opposition; pistol, house he was entered the shot down who parties, (deceased) of the with- notice charged purpose coming and saw and who were what looking transpired yard. premises were amply justified believing parties, In opinion jury our mother, had conspired father and to resist together appellant, thereunder; premises writ taking possession execution in order them from tak- slay prevent necessary, to induce this ample belief, The evidence was ing possession. it. We examined record care- adopting justified it contains errors of reversible char- not believe and we do fully, is affirmed. The judgment acter.
Affirmed. I do in the affirmance. BROOKS, Judge. However, I concur the writer of the expressed opinion, of the views some agree a distinction between the law made draw an attempt wherein question views on My the law conspirators. principals 46 Texas Crim. Rep., in Catherine Smith discussed thoroughly therein cited. endorse the decisions 984. I 267; Rep., 10 Texas Ct. REHEARING. ON 1, 1905. November Judge.—The at Austin HENDERSON, was affirmed judgment rehearing. us on motion for term, and now comes before con- the doctrine of discussed length opinion In original court and the admission spiracy, involving How- necessary again deemed is not review that question. Eeporis. 48 Texas Criminal has ever, seen fit to criticise the court’s citation and discus sion of the case of Cox et al. v. State, Texas Crim. App., 254. In the original opinion we'copied excerpt opinion, which the stated, court in effect, that much would difficulty be avoided by keep in mind ing statutory provisions reference to principals. court there stated that when the shows proof two persons were acting with an unlaAvful together intent in the commission of an offense, the common design makes acting together them ipso facto conspirators; and that the previous acts and declarations of each or such princi offender, pal in pursuance of the agreed plan, to throw tending or the motive or light upon it, intent with which it was committed is and should be received as legal admissible evidence each all, indicted, whether prosecuted and tried jointly separately. on what was in his commenting stated, motion intimates that the court did not act on this at all, but excluded the principle declara tions of testified to witness Meador, We understand Kilgore. court did exclude a is, Kilgore’s testimony; portion *14 Avhichrelated ato conversation which took to the place prior killing of Geo. Brazzell on the to the house of Hardin. way testified Kilgore to another himself left, conversation between and Meador after they Hardin’s house. We must confess it is difficult to a make distinction betAveen this as of witness to what was said before testimony arriv- house,, at Hardin’s and what was said after there. How- ing leaving distinction, ever court drew a “But using following language: it is said that the declarations of Meador showed a or simply willingness intention on his to do certain without things, showing with him at that one else had to act time. This is agreed objection only used Meador in to the the first conversation aрplicable expressions on the to Hardin’s. mature re- Cox’s Kilgore, way Hpon flection, we are of testimony admissible opinion rule but was conflict with all the evidence, directly of known The rule is The evidence of that, rules. what general recognized the other must be limited to their conspirators was said and done by while the made done conspiracy acts and declarations pending, said before or after- design,—what and in furtherance of the of The court admissibility.’” within principles wards not being to the two other objections “With says:' regard testimony further Meador, which we have pointed to his conversation as Kilgore as above, that, necessary say urged, objec- we deem it only out more combine to do unlawful ‘If two or are not tenable. tions to the common according plan, act of one, proceeding thing, not the result in- result, though particular in a criminal terminates ” liable.’ tended, all are in said that in case, proving from the Now, opinion understand two acted as crime, princi- proof commit a conspiracy crime, furnishes common proof of said commission in the pals to show that a testimony tending is If there crime. to do intent Smith v. 1905.] must have been fоrmed sometime before,
conspiracy pursuance committed, which the crime was acts declarations either said in furtherance of the made in the parties, though common design, other, would be absence of evidence both. We think there rule, crime, is if one commits and this party logical reasoning is shown to have been and another shown to upon motive, is party with him in its actual but no mo- cooperated assisted perpetration, is will latter, tive shown the motive of be at- co-principal case, tributed him. In stated in the original opinion, court submitted the issue of and instructed conspiracy jury, shown, if this would not acts conspiracy was not regard evidence, and declarations of other introduced alleged conspirators And the court further in this it appellant. the absence charge, us eliminated all of the harm from the that could come appears shown, of such in the absence of any conspiracy introduction to the motive and intent have actuated may party making Furthermore, declaration. may be stated opinion authorities have extent in writer recent gone greater admitting than Cox and others this character case cited by appel- State, 154, 42 Texas Rep., See v. Crim. and Hudson v. lant. Stevens 420, 43 Texas and see also Smith v. State, Rep., State, Crim. 21 Texas 96, Harris 31 Texas Crim. 411. App., Rep., Crim. that on a held, murder,
cases was where a is trial acts and declarations of shown, co-conspirators admissible and intent of all the design, purpose the common prove conspirators, declarations were made whether such acts and before after forma- or whether the same made de- tion before the entered into the Where a conspiracy. on trial party fendant knowingly formation, its held to have enters adopted *15 acts, and of designs declarations the conspirators, all the previous made, tend illustrate the common design, purpose previously all the writer acted. While believes these intent with which and have not been and overruled, far, yet they clearly too go cases is testimony objected by appellant admissible portion greater decisions, that which be admissible so and may as to harm that destroy any might court otherwise limited by appellant. resulted to and insists on a following charge, reversal objected
Appellant “If believe defendant entered into a you conspiracy account: on that or either of Smith, them, etc., and Catherine then E. Smith T. with Smith, and declarations of T. E. but can the acts will consider you motive, for the purpose illustrating purpose only consider'them if conspiracy, you conclude from forming the parties, intent case, that such in fact conspiracy formed. evidence other unless find you beyond that a reasonable charged further are You formed, Addison (defend- that conspiracy doubt will exclude from thereto, you your then consideration a party ant) Bepobts. 48 Texas Cbimixal declarations, the acts and if of T. E. any, Smith and Mrs. Catherine Smith, M. from consideration your in this case.” Appellant insists that this erroneous, is told charge if jury, appellant entered into an with agreement Smith, either conspiracy T. or Mrs. Catherine Smith to kill the resistance of writ of possession, then they could consider the acts and declarations of T. E. Smith against That if appellant. is, appellant formed a conspiracy alone with Mrs. Catherine could consider the acts and declarations of T. E. Smith with whom he had not formed a against appellant, conspiracy. course, Of is to the criticism aimed at it charge subject by appel- still lant, we are unable to see how it could have affected injuriously him, for the conclusion is irresistible if he entered into a conspiracy one entered into a with both. In this connec- tion we call attention to the asked on this charge by appellant subject, as follows: “You that mere knowl- given court, charged the existence on the edge part of defendant does not make him a to such but the evidence must party conspiracy, a reasonable show doubt the defendant not knew of beyond only but in such if participated do not conspiracy, you evidence, will not consider the you evidence of acts so find E. Smith and Mrs. declarations Catherine dis- consideration your same of the case.” Looking regard of the court in connection with charge and to the the re- cannot see how the could we have been misled to charge jury quested on this appellant subject conspiracy. the prejudice in his motion calls our rehearing, attention to Again “If believe from the evidence charge: you following beyond defendant, others, that the either alone or doubt acting reasonable or instrument calculated weapon reasonably deadly likely awith mode and use, manner of its in a sudden death to produce an aroused without and with intent adequate cause, of passion, transport Grubbs, kill with a J. B. gun, thereby did shoot charged kill, will find of murder the second indictment, guilty you at confinement penitentiary his punishment assess degree, It is insisted that this years.” less than five any period unlawful, the act must have been tell not even does have been done with it must malice. implied tell them omitted in a sudden instructs the jury, transport simply is, That cause, intent did adequate kill, without aroused of passion, in the second deceased, he would murder guilty kill shoot is with a this definition consistent entirely urged degree. are cited to a number regard in self-defense. killing lawful *16 invoked to sustain contention. appellant’s authorities, which of 703, there was no on man State, Rep., charge 83 S. W. v. In Harrison In nowhere defined. v. Ray State, cause was adequate slaughter on manslaughter adequate was no charge 737, there Rep., W. S. other vices found court charge. defined, not was cause v. The 1905-1
In Spivey State, 444, v. the conviction was for murder 77 W. Rep., S. framed, in the first held was so charge court degree, passion as that the if he not act under sudden believe, did might jury but were сould not convict him murder in the second degree, It was further bound find of murder in the first degree. guilty held, that the reasonable shifted and that no charge doubt was also given on the defini- manslaughter, might from which the find jury tion of 953, cause. W. adequate Rep., Pollard 73 S. cause, was no on and no definition of charge manslaughter adequate it murder, and was held in a where court prosecution charged de- that defendant would be of murder in the second jury guilty aroused if he deceased in sudden of passion, shot gree, transport in such it not to cause, give charge without case was error adequate re- It is not necessary cause. adequate manslaughter, defining none cited. far as we able discover, view other cases So have been Here there was a of them are more in than those reviewed. point defined, cause manslaughter, immediately charge adequate of, the court “If charge: following charge complained gave doubt that the defend- from the evidence a reasonable beyond believe jum aroused transport passion, ant with a in a sudden deadly weapon, been defined, as the same has hereinbefore did adequate cause,' decеased, Grubbs, shoot with a kill J. B. unlawfully thereby gun, indictment, then will find defendant guilty charged you at confinement in the and assess his manslaughter, punishment peni- than not less than two nor more five. term tentiary years us it be conceded How, may charge that while occurs more full and explicit, yet jury should been question murder on malice and implied the definitions given considering connection may have been misled. In this could not manslaughter self-defense, only gave be observed that court believed the officer first authorized the jury acquit, and from (appellant’s) standpoint appellant’s mother, assaulted he' was authorized bodily harm, or serious danger her life put Furthermore, of any conspiracy. appellant’s slay regardless deceased “You are even to wit: charged instruction was given requested there had been con- from the evidence that find you may though to resist the and others and you the defendants between spiracy was not done in further- killing from the evidence further find done defendant necessary of such ance you law as then mother, given charge, you under the defense before jury these charges With the defendant.” acquit will second Murder degree. murder found guilty a full definition the court and hаd been defined degree in the second however, is said, malice. given implied that, told “if They be unlawful. must killing that the even told If cause, etc.” adequate without aroused passion the killing upon not even aroused passion killing upon passion, *17 252 Crimijstal Reports. Texas by adequate cause, which was defined on by the court in the charge manslaughter, it was necessarily could not unlawful, and confused this charge either the on charge self- manslaughter defense to the detriment of appellant. The authorized testimony amply them to find appellant guilty murder in the second degree. As to the reasonable doubt, that was sufficiently presented by court. A charge was also given the reason- jury applying able doubt as between the degrees of murder and This manslaughter. was sufficient. is not necessary to discuss other matters suggested and ably argued appellant’s brief, reviewed original opinion.
Motion for is rehearing accordingly overruled.
Overruled. Ex Parte Isbell. Elmer May 10, No. 2969. Decided 1905. Option—Habeas Corpus—Dismissal
Local of Prosecution. option upon relator Where of the local convicted a violation law previous court, indictment which had been upon dismissed a discharge, notwithstanding term is corpus writ of habeas еntitled to his the reasons county attorney’s appear judgment dismissal, for the dismissal did not required by £37, Procedure, article Code Criminal and this issue was not by raised motion for new trial. Hill, from an order of the District Appeal re- Judge remanding lator habeas custody, upon corpus Tried below before proceedings. Hon. O. L. Lockett.
The states the opinion case. has
No brief relator reached the reporter. Kelly HowardMartin, Assistant for the State. Attorney-General, Kelly v.State, 480; Parchman 2 Texas Crim. Rep., Texas Crim. 228. App., Appellant was for indicted local
BROOKS, Judge. violating form, indictment proper law in Hill The option County. and numbered on April 2, 1904, grand jury presented 26, 1904, an entered 6886. Hovember order was docket On of dis- said cause Ho. 6886. dismissing judgment county court, county reasons of the attorney upon does not contain the missal However, the recites that judgment dismiss was based. motion to attorney waS the State’s asking per- filed a written statement county motion of the attorney said cause. Ho to dismiss mission court, term the county the subsequent At papers. filed among convicted in said cause by tried and 17, 1905, appellant January too after, discovered Appellant’s attorney of said indictment. virtue dismissal had that said judgment trial, for new motion late to file