*1 1904.] t. State. admitted, elarant have been showed, the record by either the witness witnesses,
himself or by other of death, the manner so that his opinion alone, did not stand is but what qualified gone before. Apply- bar, rule to at ing the case that it was shown appears by a number of witnesses what deceased as how said difficulty came up, which he lost his life. these appears Deceased have made statements after the shortly difficulty, He part a of the res stated to gestae. them that John him; John; cursed and (appellant) he struck and knife, John went for his bowie then and stabbed him. So that de- ceased’s to Yarbrough evidently statement referred to his statement other witnesses as to how the homicide must have occurred, the jury that, be so understood it. strictly of may speaking, testimony as to of himself the declaration deceased of an Yarbrough being abstract admissible, it is but when referred to fragmentary character deceased, therewith, statements and in other of connection the jury it; not have been misled could understood from other testimony in connection with of deceased that given through Yarbrough, that, in the him for deceased, cut as he nothing, did not con- opinion appellant of and his cause striking appellant sider quarreling any knife. In connection with cutting for the facts it, must have referred fail to see to which the we how is jury stated The motion for is overruled. rehearing have injured appellant.
Motion overruled. M. v. The State. Catherine 25, 1904. Decided June 2699. No. Coconspirators. —Evidence—Conspiracy—'Statements of 1. conspiracy murder, a evidence shows between where a trial On crime, party the acts and declarations to commit another defendant killing, though coconspirators prior to the made in the threats conspiracy formed, defendant, before admissible absence evidence object -animus, purpose ac- defendant show tuating commission crime. defendant Entering Conspiracy Immaterial. —Same—Time 2. conspiracy, crime, evidence shows it makes where trial aOn anyone conspiracy into the to commit time entered at what no difference the design everyone crime; the common into who entered party the act has been done the of the gnerally which deemed by any every may afterwards done other others design. of such common others in furtherance —Charge than Law Permits. Favorable 3. Court—More questions of fact as to whether which submitted A another, conspiracy existed between or not conspiracy, occurred, there was such and if declarations acts testimony, disregard permits, to defendant law favorable than the more might after such formed have declarations. Experiments. —Evidence—Subsequent 4. record show knew of evidence in the In the absence of grain resisting power to bullets fired therein and of the sacks of indicating codefendants of it knew such permit power resistance, was error grain into homicide he fired of these one sacks the bullets through go these sacks.
did not 46 [Austin, Reports. Criminal —Evidence—Animus Defendant. deputy on trial testified sheriff, for murder of a Where *2 dispossessed and that the her he when officer the first that kind was putting considerate and her it com- place; not her off physician the was .hurt for petent by the State in' to á her rebuttal show who treated shortly after eviction, first a said and few weeks before the officer attempted dispossess to her time, and her husband a defendant’s second deceased, animus that toward by made by statements defendant to injuries that time, and he to attended which defendant then claimed the upon deceased had inflicted her. Testimony—Documents. 6.—Evidence—Material judgment against a Where of foreclosure defendant her and husband’s had land suspended and execution obtained until default of the pay- ment certain interest of thereon judgment, purchaser of the said it was for the permissible State show that such contingency by had occurred writing the introduction of certain instruments that show the order judgment possession and writ of sale of under said and which the deceased attempted to enforce were not prematurely issued the terms of such instrument. 7.—Evidence—Advice of Counsel. appellant Where was killing tried for murder for an officer who. attempted dispossess her and her of husband land virtue of a writ possession, of proper it was to exclude the advice of counsel effect that under contingencies against could certain use force force in order possession the land. maintain of 8.—Evidence—Criminal Intent. against proposes State Where the procuring show criminal intent intent, one appellant can arms, show that his criminal any, was explain and can party why different and another he secured the arms to do with them. he intended what —Evidence—Self-Serving 9. Declarations. long exclamations Declarations of defendant the homicide gestae self-serving, not res therefore inadmissible in evidence. Exceptions—Too —Bill 10. of General. objection charge An that the court taken a erroneous, whole vague general etc., is too be reviewed. —Charge of the 11. Court. charged, beyond Where court in case you “and believe a reasonable conspired that defendants to resist in the doubt officer execution any immaterial, then it evidence, writ read would possession they animosity, personal any or cherished malice toward whether had deceased,” error. there no —Charge 12. of the Court—Writ—Functus Officio. Where a sheriff under a writ dispossessed h’y latter reoccupied thereafter officer was killed conspired to resist sectnd appellant, son, her or her who said husband attempting under is held eviction, writ, while to evict it legal that process said writ was valid Davidson, not officio. functus Judge, Presiding dissenting. —Charge Court—Conspiracy. 13. of the part conspiracy, trial murder It was error on court acts and declara- not consider to instruct that could they proving appellants’ tions coconspirators conspiracy, evidence, doubt, must believe from a reasonable beyond formed, consider acts declarations. 14—Charge Court. force, Where evidence did not the officers show excessive used phase case. error refuse was not 15.—Evidence—Conspiracy—Husband and Wife. procured which appellant’s husband arms shown Where thereto, declarations reference and had made used in the homicide were preclude would husband appellant’s he was fact into wife entered where evidence Judge, Presiding Davidson, homicide. her commit , conspiracy dissenting. v. The State. 190.4.] —Evidence—Subsequent Rent Contracts Immaterial. 16. upon subsequent dependent contracts made Rental which were affecting excluded, properly possession, as not
order of sale and writ of validity of the latter. —Evidence—Homestead—Validity Writ. objection admitting, There was no error in the homestead over designation written foreclosure to show valid being tried. land where the homicide occurred for Hon. below before Tried
Appeal the District of Bell. Court John M. Furman. penalty, from a
Appeal degree; conviction of murder in the second twenty-five years imprisonment penitentiary.
The opinion the case. states The court, John B. Durrett and B. B. Seay, para appellant. *3 22 of graph its instructs the believe from the charge jury they evidence a between beyond doubt that a existed reasonable conspiracy the defendant and T.° E. then the they may consider evidence of the acts and declarations of E. Smith, wholly T. and the said charge instruct the omits to must find the existence they the con jury of from the other evidence in the case spiracy can they consider the and declarations of T. Smith for any acts E. purpose. meaning of as the the is that import given must jury take all case, the evidence in the the evidence of T. E. including Smith’s acts, declarations and and from the same decide whether or a existed, and if decide that conspiracy existed, then conspiracy they may consider declarations of T. E. though as Smith they were acts and declarations of defendant.
The evidence of the acts and of T. Smith was admis- E. sible but for a that of single purpose, throwing light upon motive, intent animus of homicide, the defendant at the time of the it was admissible for that purpose only upon condition that the other evidence in the case showed the de- existence of between conspiracy fendant and T. E. Smith time acts and declarations occurred.
The said acts and declarations not admissible under cir cumstances for the of existence of the purpose showing and could not become so, clearly and was of the court duty instruct for which the as to purpose and to instruct them to limit the same admitted, admitted, which it was and to it from their exclude consideration of State, as to question Chapman v. conspiracy. existence 154; 8 394; Texas Ct. Stevens 42 Texas Crim. State, v. Rep., Rep., State, 236; Blain v. Texas 8 State, Crim. Cox. v. Texas Crim. Rep., 33 v. 254; State, 434; v. 8 Crim. Texas App., Loggins App., Kennedy State, 618; 19 v. 31 Texas Crim. Crim. State, App., 120. Rep., shows that Brooker had conclusvely bought judgment
The record Reports. 270 46 {Austin, Texas Criminal bought Union Central had Life Insurance and Harris Company, the lands from the (of an entered record By agreement Smiths. the officers had Harris, consent, full notice) with Brooker’s leased the lands E. to T. B. Smith Smith and occupied by family for the 1902 nor years Broolcer, and 1903. Neither both' Harris, nor together could evict Smith these owned until end two every to the land well The two vestige judgment. as as to owned all to the control rights powers judgment both land; both which he could hold given by a contract the land and house so rented for the the whole year If world. of them both of them could then eject Smith, neither nor one to. when the they surely could authorize no else Hence land sold all the officers turn deed and could do was to over the the tenants ' to the This would possession place purchaser purchasers. possession the premises. is for the elementary year that when a tenant leases he buys
the, year, case, and if he title he can be evicted. has good Brumly 12 Texas Crim. 609; case, 242; Crim. Elliott 39 Texas App., Rep., 304; Landlord sec. Tiedeman Real Taylor’s Tenant, Prop., sec. 190; 12 Enc. Eng. Law, Am. p.
To
effect
Texas that
the same
held in
when lessee for a
term
land,
years entfers into
possession
lessor
the execution
of the lease
sale,
parts
title
the land
lessee
opera-
tion of
law
and adverse
vendee,
becomes
tenant
such
lessee
inures
benefit of the vendee.
land
Davidson
v.
A landlord a interest in the is a owner reserving crop joint specific with the tenant of does hold a arid lien for rents. crop merely Moss, v. 23 S. 1115. W. Horsley Rep.,
The court erred in evidence in over de admitting objections of Dodd, Tom fendant, Alexander, M. testimony of S. George C. Pen dleton, Owens, A. J. W. I. C. Hunnicutt, J. J. B. Bradshaw Sparks, as to B. Taylor William the acts declarations of T. 394; husband of the defendant. 8 Texas Ct. Chapman State, v. Rep., State, 254; State, Cox v. 8 Texas Crim. v. 8 Loggins App., Texas Crim. v. 19 434; State, 618; Texas Crim. Kennedy App., v. App., Smith 120; Blain v. State, State, 31 Texas Crim. Rep., Rep., Crim. 236. Martin, Attorney-General,
Howard Assistant for State. Appellant, CatherineSmith, BROOKS, M. in was Judge. jointly dicted with B. Smith Addison husband) (her son) (her sheriff, Grubbs, for the I. B. murder of the 6th of deputy August, severance, a trial ivas granted upon con- Appellant State. v. The JZ904.]
victed, peni- in years her punishment twenty-five assessed being tentiary murder in the second degree. Appellant
The as follows: evidence adduced is substantially mortgage her a foreclosing husband a civil suit defendants in joint After Trust Company. the Union lien their favor upon property, transferred foreclosed, one Brooker the judgment mortgage defend- far the interest of so to himself. Subsequently property, Harris, transferred A. concerned, her husband J. ant and Harris mortgage. trust, foreclosed secure loan a off pay deed Brooker a said joined with defendant and executing husband of trust stipulating for the year growing crops whatever, manner lien should be affected in mortgage instrument, last failure comply the stipulations the terms Brooker had the mortgage per to foreclose Harris, husband failing comply judgment. issued Brooker, writ was the terms the instrument executed they Bros, and Brewster advertised, made, sale
on the judgment, properly 16th, occurred. On homicide July land which the bought upon their rather to Brewsters, made to been having the deed J. E. Sparks, had the officers Ike Grubbs and vendee', Hall, Brewster and husband put appellant premises sheriffs, go deputy Brewsters and of said Hall. the benefit same, off being some grain hog, the premises—a officers left some effects upon This act was per- articles. few other shock, chickens, perhaps sheriffs E. Sparks, deputy and J. formed by Grubbs) deceased (Ike o$ were ousted of Smiths Bell after County. day On next land house upon premises, returned and took possession returned Sparks deceased 6, 1903, controversy. August On under of the same writ virtue the Smiths dispossess the writ in their having pos- took place, which the former dispossession them to the home of had preceded session at the time. wagons Five defendants, while arrived short there the named came one of the officers was hitching above While up. husband approached
horses come they having buggy) appellant’s in- Deceased deceased, he truce.” came out stating flag "under anew, and appellant’s formed him he would have to dispossess in- husband and had this, protested against saying thought, not be used formed the writ of lawyers, *5 this over second time for that After some parleying purpose. house, and the question, the officers husband between got appellant’s and cottage, deceased started towards the door of the (Grubbs) offi- husband and into the house before following attempting get junc- cers. T. E. Smith him and at this and detained Sparks caught it ture entered door and Grubbs He the screen opened house. and heard, slammed him. In a few moments gunshot behind a Smith behind pistol—T. being then another shot. drew his E. Sparks Reports. 46 Texas Criminal [Austin, and him—and when he it, to draw his Smith attempted pistol grabbed hallooed, “Ike! Ike!” offi- name of deceased Sparks given (being in Ho came to this call. At this reply juncture answer cer). came out on the gallery, appellant
and her son Addison with a shotgun rifle. “I remarked, her son with a told I would Appellant you and She home.” demanded her my Sparks turn husband fight shoot; “Don’t husband will shoot replied, you loose. The me.” After Smith, E. Smith some between and turned colloquy Sparks Sparks’ loose. if Grubbs was dead. asked She pistol Sparks replied was, would be away that he and that he dead he did (Sparks) get Smith, from there. The State various witnesses that T. E. proved by after the first secured a another magazine shotgun, shotgun, dispossession, and a 32 winchester rifle. These were in house at time of the rooms, east, The house of four fronted two rooms in homicide. consisted in two a front front, more, gallery and back of these immediately occurred in the whole of the house. The nearly killing length a room, square. which was about fourteen feet There was southeast ropm, and also a window gallery, opening door on leading and a door in room, a door the south end of the gallery; on between the two front rooms. There was a somewhere table partition To room, corner. near the center bed the southeast be on to the window it would be necessary get opening gallery that he saw Addison Sparks bed. testified the bed shooting. just her son to the were only eye-witness shooting
Addison. After and other matters detailing officers coming I officers stated, Smith “When saw the substantially Mrs. testified: offi- Sanders, I said Mr. Smith and ‘There are the approaching, Mr. Mr. and Mr. went down were cers now.’ Sanders to where they the house a short distance. I sat southeast down on point at little I noticed while that Mr. by my boy, bed Sanders more; I with them and went the south window up got out to see if I could back to looked see where he was. I then walked the door and saw front Mr. officers down standing I fence then walked back the window back talking. again I door. When back I around to the door saw the got running like Mr. Smith from looked to me keeping coming house. me, were catch and I ran to trying to This frightened him. bed; east window I so that the east window from see out of I when I Mr. Smith close got there saw Mr. Sparks up south of in his hand gallery, and Mr. steps, Sparks pistol Mr. Smith it. I handcuffs pair at first it grabbed thought instant I saw was a him. In an trying put pistol, Mr. Smith had the barrel. When saw this I caught out, to the door there. When well got once to get pretty started bed, Grubbs rushed at the door and the foot Mr. took a *6 1904.] v. The State. him rushed toward I did not He
step see the screen door. open me. I start right on me. was not for him. When I saw him looking I don’t said, me; toward threw Don’t touch me, hands, up you my on me.’ About this that was put your lying hands time he saw a gun table, close the foot of bed and to my right, for it. started When he started I gun it, and he sort grabbed me and the and we caught commenced over stepped gun; scuffling it, He tried to take the from me I gun. gun away held on to wall, and he near door, forced back the north me partition and the went off he gun us, between fell floor and dragged me with I chair, him. fell over the west of back of a rocking parti- tion door. I was terribly frightened and and stood struggled up, wall and looked down at him. I partition saw he I dead. saw the wound in his head, blood from spurted it, brains scattered on the floor. I saw his particles of about brains the size of piece lead on the front of pencil spattered dress, my on I my breast. tried to brush them off. At the I told time Grubbs me, touch his face looked so He had been angry. so kind and good me when he was before that I there knew him the hardly he looked way when he started to me. I did not point gun him, attempt T did shoot it. not have time to do anything it, he caught so The moment me he quick. caught gun commenced trying take it I away me, and was on to it with holding all my might.
sonMy Addison was on the bed with head win- lying towards the dow last I saw before Grubbs came in the door. I do know what he did when room, Grubbs came in the or what he while did we were I have no struggling. recollection of getting a gun going out the gallery Mr. turn ordering Sparks to husband loose. my I heard all the testimony in this case and heard habeas testimony on corpus trial, and I feel sure from what I heard that I went out and that I gallery had the gun did, I but I have never been say able to recollect more than have anything told. did not have malice or unkind toward feelings deceased when Sparks came out there that morning.”
This substance of the defense in reference to the there are minor killing; some details which we do not deem necessary state. The evidence on the undisputed State de- part is that ceased was killed with a shotgun, part buckshot been found having in his head part wadding gun. proof also shows from the winchester in the discharge scuffle detailed Mrs. floor, went in the about wall four feet from the evidently not cause the death of deceased. The entire side of deceased’shead was off, shot and his brains were scattered on the floor.
There are bills fifty-three in this exception record. We will dis- Vol. Grim.—18. ° Keports. 46 [Austin,
274- Criminal *7 cuss those- of which we deem for a this disposition proper necessary case.
By bill of number 1 the State to exceptions was permitted prove M. “I Dodd, the witness S. over objection, following: appellant’s know This I these here. Winchester guns belongs rifle to stock. my killed, remember the circumstance of of Grubbs about 6th being last. Before that I rented August time these to T. E. Smith. guns of He rifle on the 5th got August, magazine Winchester and on the 23d of he when I went shotgun July. day rifle, got in the store on Mr. and was some Alexander was waiting having Mr. cartridges trouble Smith asked me how it loading gun. many carried, and him catalogue looked in told carried fifteen and it in the and one in the him chamber. asked if he was magazine going and loaded, to out we were and and said he laughing joking, carry to take and going jack-rabbits and kill some out the farm bring ears in ticket. I do not know their to vote the prohibition it was whether he was a can remember or anti. As well as I pro an about 3 or 4 o’clock 5th.” objected in of August Appellant evening said of T. this acts ground defendant, in the there E. Smith were made is nothing absence them; her to in because at the responsible shown for be any way he was husband of said declarations and said acts making time is effect same deceased, prove against using her; as a and because of defendant said the husband or declarations made pending any have been done acts do not appear or other person, T. E. Smith any between combination pos- writ of attempted life officer who execute any take the been made of such session; pursuance do have not appear and declarations aliunde acts evidence because conspiracy; showing a facie Smith or even make prima fails to show wholly conspiracy or time combination any there existed at the thereof deceased other kill person or any between said and defendant posses- the writ of or execute to resist officer who might attempt said acts sion; at because it from the evidence appears existence; no conspiracy and declarations made done would be no idea at the time that any attempt because said Smith writ, informed under the but was made to remove him from .the premises suit would settled a law over the be dispute “The record showed that The court this court. appends explanation: and severed at the E. indicted defendant and T. Smith were jointly Smith. The court sub- defendant, of T. consent E. request fact, conspiracy whether or mitted jury, question T. E. at the time said acts and defendant and existed between declarations.occurred, was not such a then to there conspiracy whether immaterial testimony.” disregard the acts and declarations of the time Smith were com- was formed The State. Smith v. 1904-3 formed, question
mitted or If it this was subsequently not. husband fact for the to determine. The that he me fact life take the conspiracy to forming preclude would declarations would This officers. being true, the evidence think defendant. We well as him, admissible there was shows, standpoint, the State’s case clearly this indicating introduced the evidence And conspiracy. to again the officer would attempt not think her husband did she testimony, the introduction of not preclude would writ, execute weight credibility. to its could only go tes- introduction 2 complains bill number Appellant’s question. Alexander, upon Tom timony practically *8 Pendleton, Geo. C. the court permitted that The third bill complains Mrs. Smith about Mr. and with “I had some conversation testify: to Grubbs and Sparks land, day the 16th of July—the about Brewster, Mr. that first time. On them day went out and moved off get out on the to went place and Warren, myself sheriff and deputy Mr. us, and to acknowledging tenancy to contracts tenants sign us, to acknowledging tenancy we about all of them contracts got sign to found Mrs. We the Smiths. we went down to the house occupied I a conversa- there. had home, Mr. Smith Smith at but not find had she knew we with I I tion Mrs. told her that supposed Smith. Smith sale, at and her if she and Mr. the land asked bought Mr. what do it. did not know decided to about She she replied, what to but she declined do, was, was but she she Smith to Imew what going I to do. I left Mr. Smith in Temple. what she met say was and going was was he not sorry him that we had been out and told to place, for the hime; year him tenant on the place that we recognized as tenants; attornments gotten other that we 1903, balance;' from the tenants,- to them get several of the were going and but as to place, that did not claim small we rent grain on claimed the rent that we we growing crops year; the place end of the and all we year, him to the farm until wanted stay landlord; as his that we him was to Brewster acknowledge asked of that no settled His was this was amicably. reply wanted matter him if I make worth proposition something would that proposition; me, TTou have heard I it. He that claim consider he would I him that of the land.’ told we homestead out settle the wanted.to could that it, but if we not do we had a trouble, without writ matter land. told him off the I him that the sheriff would put I land, there, off the he would hoped him be out to and we put be more trouble to him it without than was manage necessary. out with I went Mr. Austin and morning to finish Strange The next with Mr. Smith tenants also if other he would attorn. up land, and the between Temple Mr. Smith stopped I met spoke him. I was out, regretted he going I told was and.- there; not Reports. 46 Texas Criminal [Austin. asked him if him I he would be back told wanted to settle again. he and in a thing amicably, way; and asked him pleasantly legal would back He stated had business in evening. he Temple T said, want warn now not td house my my you go bothering wife/ saw Mr. after that time. never He warned me not to go I did place, go again.” to this Appellant objected there evidence on the ground in the presence and the various reasons urged objections in the first bill. Hone of these objections well taken, properly admitted. the fourth
By bill the State Owens, Satur- proved by A. J. “that on 18th day, the day we were July, while for Mrs. Smith waiting get ready or while we go, were for it waiting get cool enough for her or to go, off, Smith, take her E.T. Sparks and Grubbs and myself sitting house; shade on the north side of- heard Smith do some talking there about I heard being evicted. say under the this, over circumstances as were" do if it again, he would God, sell and he sell out, meant, by out he that he would kill or He get killed. said that he had three boys that he was to teach them all going the same thing. That about that I heard him say.” fifth bill J. E. By it is shown Sparks permitted to testify to Owens; the same as the facts states that conversation, in that said “he had no feelings hard officers, toward the not to themselves they ought put up *9 bill, targets.” By the sixth complains testimony of Hunnieutt, J. W. in which details a T. E. long conversation with Smith, showing approved animus toward the officers. This bill is last with this qualification: “That the admitted court ‘and in testimony its them charge submitted to of fact questions as or not a whether existed E. conspiracy between defendant T. the time said at acts and declarations there occurred, not such then to That conspiracy, disregard testimony. record showed defendant and E. Smith T. were indicted and jointly defendant, severed the consent of T. Smith.” request E. To all of this testimony same objections were practically We urged. that, murder, hold on a trial for where the evidence shows a conspir- acy between defendant and another to commit the party crime, the and threats of the coconspirator prior killing, the absence made in though conspiracy evidence against admissible in defendant to formed, are show ani- 'defendant in the actuating purpose "commissionof mus, object hold that makes no difference at further what any- crime. We time crime; commit a one conspiracy every into a who one enters enters generally design common deemed purpose party into the others, before done has other every act which which others done of the by any furtherance of afterwards such may The State. v. 190-4.] 277- common 420; 43 Texas design. State, Hudson v. Crim. Stevens Rep., State, v. 42 Texas 154; State, Crim. Texas Rep., Rep., v. Ct. Chapman 392, 45 479; State, Blaine Rep., Rep., Crim. v. Texas Crim follows, therefore, that the of the court qualification as of such giving more than the law favorable per mits. declarations, If E. Smith made these formed subsequently officer, with his wife and son to kill conspiracy deceased and his brother ^or other who parties might then attempt dispossess him premises, such declarations, though made previous to the formation of the conspi racy, would be admissible to illustrate and make manifest the intent with parties were at the the consummation of the acting conspiracy. This should be the placed character of qualification upon in testimony by court in his he should not have charge, structed the jury that would not be considered unless was formed at the time of the declarations and threats.
Bill of numbers 7 exceptions and 8 complain of the introduction similar declarations Smith, of T. E. in bill number 6. stated All was admissible for the above indicated, and objections urged by are not well taken. The ninth bill of exceptions complains “The following: Hunnicutt, State introduced J. W. and after he had testified to conver- sations counsel State Ms proposed refresh memory by statement made reading him before signed by the grand jury, hearing correct, statement stated it was and that he knew the statement was correct independent said written state- ment, and that same merely refreshed his therein facts memory detailed.” The bill is quite lengthy and we will detail it. We do think there was error in this. the tenth bill, it the State introduced Sam
By who appears Sparks, testified: “When I went out to the Smith place following Sunday I fired a into one of the killing, pistol sacks of grain was piled there on when up gallery Grubbs was killed. The pistol used a 45-caliber sacks, sacks of Colt’s. oats the ordinary such usually oats sacked in. shots When fired the into the sacks *10 oats, the did not the bullets sacks of go tMough grain. pistol best made.” 'In used was the very pistol addition statement made the above, showed that sacks were testimony piled the as a up barricade house; the doors and windows and the against State’s insistence that same was done for preparation was the the resisting officers. contended, shows that defendant so The bill testified, that knew she no kill the officers or resist of or the agreement them to life, the sacks grain extent and that of taking of placed the for room of the house the in the back of purpose protecting gallery and the the of depredation from weather stock the grain in running threshed, had been grain field the that neither the where she nor of using intention said sacks of any grain her husband for the Eeports. [Austin, 46 Texas Criminal the that ground objected on Appellant officers. purpose resisting could not and and did for any purpose, and inadmissible was irrelevant did and could case; the issue in throw any light upon not. and said of defendant as to purpose illustrate the question and in on the gallery sacks in of grain T. E. Smith placing were, grain .said sacks of of the fact that house; and because proof for be could not used barricade, suitable for the forming purpose We for that same that purpose. were used proving evidence in not think this There is no do admissible. the sacks power resisting record show knew of the that appellant of any declaration bullets fired therein. There is no grain to resist- such power knew of any codefendants that indicating wit- other for officeror any It is entirely germane ance. proper there, number, etc., how ness to as to thb being placed, sacks testify was, barricade how to show effective experiments subsequent of' perpetrators would not throw intent any light upon guilty this crime. Dr. Barton it is shown that
By the eleventh bill of exceptions an examination of Mrs. “When made permitted testify: having about in she said the officers something the hospital Temple of any hurt her. I did not find any injury her off put place and for me for damages, sort. She asked about her suit that I know her; out and I told her did not her and hurt having put that, I don’t remember lawyer. to consult a saying about her anything her suit.” her in my standing by Appellant about objected anything a privileged that communication between the ground physician inadmissible for irrelevant, any purpose, and patient; incompetent this, occurred more than three in that weeks prior homicide, and before had ever defendant returned to the prem- occurred, ises where could have known or killing she return, that she would ever or that officers would contemplated and undertake evict her ever return from said the second time; declaration defendant with reference having have been injured way no connected with the facts and of the homicide after; circumstances occurring long was calculated defendant them to prejudice by leading believe pretended officer when injured by she time, in fact she was not first when so evicted injured. The bill, as follows: “Defendant took the court stand qualifies testified, other behalf, among own things, her deceased assisted titiie; out the first kind, her careful and con- putting and in acted way siderate of no or feelings rough ungentlemanly her her, toward not make on her to any injure any assault her her injure way; that she an<TT. E. way, attempt in. hospital the farm to the Daughters’ King’s Temple; went Dr. Barton attended her. Counsel State then asked her if at any *11 The State. Smith v. JZ904.] which To
time Dr. request. made her at Barton an examination of her question: she asked this that he did not. for State replied Counsel then Barton 'At to Dr. that did in substance say and place you farm, and in so home and you your that officers had out of put that she did so had hurt and To which she doing injured you.’ replied, in not. asked, place, then same time Counsel 'Did you find he could substance, Dr. Barton after he had told that say you do> am I nothing you, 'Well, doctor, the matter with what going me?” about suit my hurting me out and putting To she Counsel then that she had no such conversation. replied her, asked 'If substance, Dr. did Barton not tell her, a matter he did better con- about, not know and that she had anything sult a asked lawyer.’ To which sir.’ Counsel then answered, ‘No, she defendant, my she stand me in 'Doctor, 'If did not say, by won’t you suit?’ To which answered, she she not. Defendant testified also that at the time of the homicide deceased assaulted her. The State sought rebuttal stand Dr. impeach by placing upon the Barton, him the asking that were questions asked exceptions; out above set in the bill of and the witness Barton gave answers as set out.” This is admissible indicative testimony clearly of the fact that had animus deceased- previous ejection premises and her declaration to doc- tor that he (deceased) her, hurt illustrate clearly admissible to and show the animus and malice she had toward deceased. Clearly it was for her permissible that deceased had been kind and testify considerate in her from the ejecting in order to show premises, she had no animus toward deceased at time of the homi- cide, it was for the State to rebut proper by adverse declarations made her Barton. by to Dr.
Bill of number 12 shows that exceptions appellant "offered to prove N. Brooker and A. J. by J. Harris: having been proved by [It instrument State by when said writing Brooker agreed to extend the time for the payment judgment against defendant and T. B. himby bought assumed J. by A. Harris, as shown that said Harris evidence, agreed pay interest on said judgment annually, whole upon pain debt due becoming and payable default payment of said upon The further' facts interest.] witnesses that said proved Harris made default interest, of said and that payment Brooker thereupon declared his due, made the entire option debt and had his order of sale issued said foreclosed lien upon judgment the land sold thereunder” to this objected Appellant the ground that by pur- the. chase Brooker judgment by and the purchase of. the land upon which the was a judgment foreclosed lien and the assumption of the payment said judgment by Harris, contract of ex- and the tension additional security between said Harris Brooker, *12 Reports. \_Auslin, 46 Texas Criminal original
defendant T. E. Smith who were the and Catherine same; suit, defendants in the foreclosure eliminated from the were the order Brooker of sale issued said at the instance of upon judgment Harris, did not under with the Smiths, they to held apply only and consent Brooker for from permission year 1903, and exempt said order their -had of sale until time as operation tenants and it was immaterial to them whether order expired; of sale was not; and the issued said calculated legally to prejudice them to believe that defendant jury against leading Harris in the default of said connected said the payment have over deeds, notes to We these various carefully gone Brooker. trust, bill deeds chattel in this etc., to and recited mortgages, alluded of exceptions. all and show their face to have They appear upon executed to the of the foreclosure subsequent original procurement Brooker. which to tí. judgment,- foreclosure was transferred J. judgment also shows instruments—the exact verbi- appellant legal signed state; that, of which we do not deem to necessary to the effect age if the due upon made of interest parties payment default in the order foreclosure, Brooker had the issue his judgment right sale, have the clear of said instruments legal land sold. The import effect; is to this and the as to the default made undisputed facts There is Harris, appellant’s and T. no merit E. Smith. Harris, her held under A. J. since contention that she and husband Harris held a to do certain neither permissive right which merely things, of them We hold said instruments were performed. accordingly was not prematurely introduced show that the of sale properly order the collateral agreement. issued the terms of introduced had complains thirteenth bill adviser and legal had testified that Harris, A. J. and he in all the business and litigation husband for defendant and attorney premises with the where mortgage upon connected foreclosure of occurred, in which and in the suit the writ possession the homicide issued, witness, then offered prove by ease was in this and husband in said he had of defendant bought equity “That foreclosed; and Brooker to after the procured premises, mortgage extend the time same until payment buy judgment to T. E. Smith for 1904. That witness rented the January, premises That when the land was sold under order year sale, E. came to witness counsel legal and advice as what course in the for him event of the land pursue attempting purchaser that, from that he advised premises; ijiem evict acknowl- they their to the tenancy would after- edged purchaser premises, they from prem- wards a homestead in the estopped claiming right ises; and them they further advised to the right for the 1903, remainder under year their rental him, and were entitled to their contract growing crops upon Smith v. T-he State. 1904-1 have
rented would 1903, premises less rents for the year they their failed to establish pay purchaser—even though they out claim; that them officers came homestead witness advised when the them, at first evict while remain they right prem- upon remainder of the defend- ises for the fact year and were named the order of sale as defend- suit original ants to evict them ants, would give premises, an and that there was injunction bond, unless could give nothing *13 the for to do but submit to off the quietly being put place by them to officers; the time the officers them from evicting place that at were the witness was on the and told T. E. he premises the time Smith if first the after premises peaceably, could the officers regain possession off, in full him and Brewsters put possession had and put complete writ, same under the he that could hold possession rightfully of the same as the said Brewster until possession he gath- until end ered from the or the crops premises, year of that Brewster to and would be forced sue him for either the title detainer, for of the land or forcible and and that could entry he defend his to the land in two right that suit. That or three days after the Smiths evicted from the witness met said were premises, Smith in town of he had moved and he told witness that Temple, back and was the officers premises on there that living again; him Brewster in- under off put place, put writ, and he back the next went and on the and found no one morning place back house; moved into the that he witness then advised Smith that had to hold said right Brewster until premises against his to right was settled aby suit, and if property that Brewster attempted put to he would force, him off have a to resist force with that right force; witness then advised Smith that the order sale and writ of pos- in the suit foreclosure was functus officio, session and the sheriff him a second time under evict right writ; no said and he that so, to do and that attempt only thing would watch friends Brewster was to him keep catching off his guard force; him that if him place by off putting off get he would no have get possession, take the place have bond and sue them force, give but would for the place. That to be on witness warned Smith Brewster guard against and his friends. at never time before or after any That Smiths were 20, 1903, from the land on evicted advised T. July E. Smith to or shoot it out- with resist the officers them if came to put He advised him that he could not premises. off the resist for a officers, no matter what their moment the were.” legal rights that The bill further shows the State had introduced the acts and of T. E. Smith for the that Smith purpose showing had re-entered and with them, holding against any person evict attempting intention Reports. \_AusUnj Texas Criminal even sale, said order of though it the officers under acting other life, extent of On taking hold such necessary, possession. hand intention that she of such nothing contends knew Biit part of said that did not in exist. the same fact all refer the acts and declarations of T. Smith were made with E. -enee or officer other and different than deceased other persons any them under might who come to said writ possession; evict same were made and done reference to the Brewsters their and for friends, the lawful an rightful purpose resisting place by unlawful Brewster to them off the put attempt part any force. at That neither nor T. E. time had any off them put place idea the officers would come to thought the second under such time acts and declarations writ occurred. The State of the witness Harris objected testimony E. that it ground was no act or declaration part State; Smith introduced lawyer advice of a interested that the advice no that the defense a crime and party; hearsay, codefendant, declaration of a self-serving The court sustained all incompetent. and excluded objections, It is from the rule advice jury. general *14 law, counsel no excuse to the client for can violating furnishes and civil or actions. 1 be relied in either criminal a defense upon Law, 897. In Weston Commonwealth, Am. and Enc. of v. Eng. p. murder, 397, held, a trial of one 111 it was “On charged Pa. St., (cid:127) counsel, had had counsel by consulted and that testimony of the to maintain right possession that he had a legal advised murder which took alleged place, land in about the dispute, State, In in evidence.” Gallaher v. 38 held not be admissible Willson, de this discussing question, Judge in App., Crim. court, “It was not of the majority says: of the livering the opinion think, prove by we said witness the any purpose, competent in to defendant as an relation to attorney litiga advice he gave of his in said opinion legal rights or or tion, litigation, defendant’s and others to deceased to by judge accept the advice given * * * her Hor Gallaher. can we see upon by offered compromise land suit his counsel advice of in opinions what and principle attorney his Suppose could be admissible evidence in his behalf. held and the suit be defeated in that he would certainly had advised him behalf such be admissible in land, testimony would lose the would Then should it be admitted in not. Certainly why the State? his or which such precedent of no rule would admit know behalf?- We State, Texas Crim. Inde Ward v. Rep., See also testimony.” that sound, we believe the proposition authorities these pendent immunity punishment by reason of not set up can would be holding since such the advice of counsel, placing advice The State. v. 1904-] the court attorney above the law. We hold therefore that
err in this excluding testimony. by By prove offered fourteenth bill of exceptions T. E. Smith witness Ed he Brewster that had a conversation with 20th; on the that stated had moved back July premises* and he settled, and he on the not been that had had premises de- then whatever the courts him, that would sue have to witness attorney his decision; his cided as to he would abide rights by him, had would have to sue would have told him witness in matter decided chance to defend the suit have his rights executed, had been courts; fully the writ of possession title in trespass try would now have to sue either detainer, in their over the forcible possession entry dispute objected State would settled in courts. The declaration cocon- this on the that the was a ground connected declarations, way not in spirators, self-serving acts and declarations conversation State. These introduced admissible. and are not clearly self-serving substance, that offered to prove, witness Ed Bancier By back moving prem his to assist E. Smith secured services T. hold all if he ises, felt he could the premises against and Smith parties time; that he got guns the second get Brews himself effort on contemplated part protect this his purpose ters possesion to regain premises; facts from the statement of getting guns. appears E. part divers and declarations on the sundry State proved toward the malice, a settled indicating purpose part himself the purpose ousted and armed him, who previously officers; house, barricaded his was watch resisting partly To difficulty. this, combat their ing approach Smith’s bill, getting she to show that proposed shown contemplated himself disposses protect the weapons *15 We believe this the Brewsters only. testimony germane, sion with which he the weapons. to show the intent Our procured going is law. In Green v. on this broader than the common subject statute 751 17 held that article the State, 395, expands we App., Crim. rule with reference such evidence. At law to common common law is in a when a confession or admission introduced evidence against is entitled of he said such to whole what party prove party, the time such or admission- The above making subject at of confession declaration, not restrict the conversa act, cited does explanatory article the act, declaration, to the time when conversation or writing tion or occurred; but extends the explained to be rule so as writing sought admissible, if a under necessary render statements full such or statements introduced or to the acts in evidence explain of standing have a may transpired the same although party, adverse Bepokts. 284 [Austin, 46 Tesas Criminal different time a so as and at remote even as not to be admissible State, 498; Texas Crim. State, Rep., res Roller v. gestse.” Wood v. Crim. The same character of App., 28 Texas testimony 16, bill number through offered Bobert Dennis, as As to matter hold the reason of in we securing pistol. one criminal that where the State to show a intent proposes intent, arms, any, show his criminal procuring appellant can another and wish to be different We do not understood party. as as to holding attorneys he can introduce the opinion rights premses; but he can he secured arms explain why what he intended to do with them.
The seventeenth bill allow the failure of the court to complains of Harris to testify to advice and E. Smith suggestions made T. reference to his rights the line of bill. We do along preceding think this was admissible. testimony nojt court err Rinnard J. excluding P. testimony as homi- exclamations of defendant after the The bill cide. shows that said statement occurred long, afterward, res but was gestse, self-serving. err Hor did court excluding Brooker and testimony Harris to the effect that Harris rented the A. disputed J. to make with the year
tenants crop and con- knowledge contracts were of Brooker. Said rental all sent subsequent, made sale. order of dependent upon err in excluding did the court
Hor A. J. Harris Addison Smith made the habeas trial, statement corpus since coconspirator . declaration self-serving it was the consumma- conspiracy. tion of the in admitting, objections did the court err over the
Nor of homestead, because written designation showed designated another and her husband and different parcel in the town of as their Temple land situated homestead, which was in order to constitutional and make a valid necessary foreclosure on the land where the occurred. difficulty bill
In number “that urges the court is taken a whole in that erroneous, is it made defini- up statutory tions and abstract law, definitions of without any attempt apply the same to the facts case; matter, argumentative subject form and arrangement; calculated to disclose clearly of the court opinion as to weight given to the end and as the guilt of These defendant.” objections too'vague general to be considered and reviewed.
Appellant complains following portion charge: court’s *16 “And in case believe a reasonable you beyond doubt the defend- any ants resist officer the conspired execution of the posses- writ of then sion read it would'he immaterial evidence, whether they v. The State. 1904-] 285 any personal or towards I. B. Grubb? animosity cherished malice any State, personally.” 8 We understand be the law. v. this to Kipper 45, 852, Texas Ct. Rep., Texas 377. Rep., Crim.
Bill twenty-first number 34 insists that in the para- the court erred graph of which is “That the writ of charge, possession in the return thereon been evidence, possession read as having B. death, process at a valid at legal I. Grubbs the time his law; date of and it was homicide, authorized by duty to execute the same and officer same in having possession therein.” In our opinion return the same the return day specified err charg- writ was not and the court did not in so functus officio ing. issued, Where writ of is has sheriff execute it times as until the he is many necessary day required writ; return said and that does not become functus officio until it Sheriffs, date for its In required 1021, return. sec. Murphy is used: “A writ be possession may issued without language it, return stated in be re-executed if day so may plaintiff, having put ejected is one possession, by defendant or any under him.” Jackson claiming v. Citing Hawley, Wend., too, said, “It is that an alias writ will be issued takes ejection is made before is place application the writ returned filed, is the provided intruder defendant or one in privity him. if the But be ousted plaintiff stranger he will be driven new The ejectment. authorities on this subject are con- somewhat would seem to be but it the better flicting, opinion that after the first writ returned satisfied there can no alias and the plaintiff will be driven to new or other like ejectment, process; though it is otherwise life during 26 Am. original process.” Dec., p. 436. Crooker Sheriffs, 575, see. says: “Where the writ is re- not made
turnable, as it seldom the is, sheriff under may remove defendant one under claiming the premises as often as he intrudes upon them.” See also Freeman on secs. Executions, evidence 474-477. in this case shows that and her husband are defendants writ, original clearly writ was authority dispos- ample inasmuch sessing them, as it time. We had not been returned deem do not review authorities necessary on this appellant’s ques- tion. Suffice it rule say wherein hold contrary they down, can not herein laid we thereto. agree insistí, also that the Appellant court erred in tell the jury failing could not consider the and declarations co- appellant’s they conspirators but that proving conspiracy; evidence, must believe from a reasonable beyond doubt, that formed, could consider said acts and declara State, have been This should v. 8 Texas given. Chapman tions. 377; 45 Texas Crim. v. Rep., Loggins State, 8 Rep., Ct. Texas Crim. State, v. Crim. 434; 493; State, Luttrell Rep., Blain v. App., *17 Reports. 286 [Austin, 46 Texas Criminal cited, that hold, Texas Crim. under authorities Rep., 248. We the was error for the acts and court to fail so since the the charge jury, declarations of be for the coconspirator purpose could not considered be the but aliunde proving proved the must conspiracy; conspiracy so beyond doubt, reasonable should have charged, and the court before acts and could conspirator the declarations of the be consid throw ered, since acts and are admissible to only light declarations object, illustrate and make manifest upon, the motive purpose, intent the the the conspiracy, not parties forming prove conspiracy. We the learned his judge qualification note trial the of the coconspirator admission the declarations stated that limited init for this and that said charge purpose, to consideration the could be unless not considered believed jury they be acts and were made will pending conspiracy. It 43 Texas seen from case Hudson Crim. State, Rep., v. above, that this rule does other cases cited not declara prevail. But the be of a can the same coconspirator admitted, although tions was made court formed, it is the duty though wit, introduced, to limit same for purpose which motive, parties forming to illustrate and intent of the , conspiracy. charge further court erred in Appellant refusing insists that in the defendant could excessive force execution resist record this issue. suggesting There is no in this writ. to the prem- writ, The had the go officers valid having show- There is nothing it. and use all execute ises reasonable force to charge was not error to did more than this. Hence it ing they omit testimony. on an issue not raised error, pains- but after a most assignments are various other There well . not believe thereof, we do taking searching reading all full and fair in court taken. We believe the above. stated respects, except particulars re- reversed and the cause discussed, For the errors judgment manded.
Reversed and remanded. Judge. do reversal, Presiding DAVIDSON, I agree used evidence. be the writ not agree the statement dp Nor my was functus officio judgment. agree She herein. wife, could be used of the husband husband. with her should be held conspirator in my judgment conceded. I do not believe may she be a may principal That can in this case. If husband wife decision is involved Hudson ease would stated apply then the Hndson for conspiracy, be held views more fully. out my write may brother Brooks. v. The State. Butler 1904-} n Judge.
HENDERSON, reached reversing to the result I agree case, but to all the views agree expressed opinion. do not writ under attempting and which operated officio; to enforce functus at the of the homicide the officers under my were authorized act it. opinion *18 the,doctrine Under or declarations of conspiracy statements only T. E. Smith were admissible was not against as Mrs. Smith when she were made after formation of the present, conspiracy, to I accordingly furtherance thereof. believe what E. Smith said to the on the occasion the first evic- tion, thereafter, they when were or for Mrs. to shortly waiting get ready her, was not admissible she not go, being present the time and then there no being pretense conspiracy However, formed. protected appel- court adequately lant course, against the evil effects of this husband testimony. Of commit wife, can according my coconspirators be understanding, murder. All or arms and such as getting other con- the circumstances indicate that preparations, when formed, spiracy admissible evidence. view it was for
According my permissible show fact evidence that State’s by' competent rebutted the theory.
State’s was to the effect theory officers who undertake to re-execute writ. other might On the. hand defendant’s theory was that did not intend to they oppose (cid:127) officers and did expect attempt the officers to to re-execute writ, but did expect Brewster to attempt regain possession. offer competent
was therefore for contraven- testimony in point; tion the State’s on this think in theory respect and what told him attorneys advice of shown. competent also believe show Grubbs’ into going house.
object
L. A. Butler v. The State.
No. 2820. Decided June 1904. and There. —Indictment—Then 1. charging misapplication the indictment public Where defendant with clause, “did,” omitted the charged funds there” “then the word closing portion, unlawfully, willfully in its as follows “and L. B.A. fraudulently take, misapply,” etc., it was sufficient to show the connection carry allegation alleged forward time and venue first part of the indictment. —Same—Description Property—Money. 2. money America,” “Three thousand current dollars United States allegation description money in the indictment is misapplied. sufficient and kind of —Evidence—Mitigation—Settlement. misapplication public funds, Where tried it was.