
    ANDERSON v. STATE.
    (No. 5670.)
    (Court of Criminal Appeals of Texas.
    June 23, 1920.
    State’s Rehearing Denied Oct. 27, 1920.)
    1. Criminal law <£=>427(2) — That defendant’s son sought interview with deceased held inadmissible.
    In a murder trial, where defendant’s son, while riding in an automobile driven by defendant, shot and killed deceased, and the evidence did not show a conspiracy, evidence that the son, after hearing of some difficulty between his family and that of the deceased, stopped at a church, with the apparent purpose of seeing the deceased, was inadmissible.
    2. Criminal law <⅞=>427(4) — Aets and declarations of alleged cooonspirator not evidence of conspiracy.
    A conspiracy to murder must be proved aliunde, and the court should have instructed that the acts and conduct of defendant’s son on the night of the murder could not be used as evidence of conspiracy between them, since such acts, if a conspiracy existed, were those of a coconspirator, and would not be evidence of a conspiracy.
    3. Homicide <©=>170 — Mere presence at-killing not evidence of guilt.
    Where defendant’s son, while riding in an automobile driven by defendant, shot and killed deceased in an encounter in which shots were exchanged, the mere presence of defendant could not be used against him.
    4. Criminal law <©=>427(2) — That defendant’s son intended trouble with some one inadmissible in absence of showing of conspiracy.
    Where conspiracy to murder was not shown, evidence that defendant’s son said he was going to “pull off one to-morrow if the right party was in town,” without specification that the deceased was the party referred to, or what the statement meant, was inadmissible, and should-not have been considered, particularly since the deceased was in town at such time, and defendant’s son left town, at defendant’s suggestion, for fear thijre might be trouble.
    
      Appeal from District Court, Fisher County; W. R. Chapman, Judge.
    F. W. Anderson was convicted of murder, and he appeals.
    Reversed and remanded.
    Walter S. Popo, of Anson, L. H. McCrea, of Cisco, and Stinson, Chambers & Brooks, of Abilene, for appellant.
    Joe C. Randel, Dist. Atty., of Hamlin, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and allotted 20 years in the penitentiary.

The former appeal is found reported in 85 Tex. Cr. R. 411, 213 S. W. 639. The facts are not very materially different from those shown on the former appeal. We notice that in the former opinion it was stated that the presence of Ray Anderson was not accounted for at his father’s residence and in connection with his father on the day of the homicide. This record shows that after the difficulty or quarrel between appellant and deceased and his brother in the field where they were cutting sorghum and maize on Friday evening, appellant went to his residence, got his auto, and went to see his son Ray, who lived seven or eight miles distant. This is accounted for by reason of the fact that the two Smiths told him that evening he must get his cane out at once, as they -purposed turning their stock loose in the field for grazing purposes. He went that evening for his son Ray to secure his assistance. Ray agreed to go, and appellant took Ray’s wife and child home with him, Ray remaining behind to make some arrangement with a neighbor about attending to his stock while he was absent working with his father in gathering the forage crop. The work was to begin Monday morning following the Friday evening when these matters occurred. It is also shown that appellant and his son returned from Anson after seeing the Smiths in Anson on Saturady morning, being in doubt as to their movements and to avoid trouble with the Smiths; that they reached home about the noon hour or little before; that they were at that time unarmed; that after reaching home and taking their purchases from the auto and placing them in the house, Ray got his gun, appellant not having or owning any weapon; thát they started north to the Swenson ranch after another son of appellant to obtain his assistance to begin work Monday morning in saving the forage crop. This son agreed to come, and was permitted so to do by the foreman of the Swenson ranch for the time desired to be economized by the father in gathering the crop. This son came in his own buggy; appellant and Ray returning in the auto. They came the direct road from the Swenson ranch to appellant’s house. They passed the house of deceased in their auto, driving rather rapidly, and when about halfway between the residence of deceased and that of appellant they discovered the Smith boys, three in number, in a buggy in the public road in front of tie residence of Mr. Gooding. As, they approached the Smiths began to get out of the buggy, one of them having a shotgun they had previously obtained from a relative that morning as they returned from Anson. As the car approached the buggy two shots were fired, one of which killed Otto Smith and one of them from Smith’s gun evidently entered the car, as it showed evidence of quite a number of shot on the side where Ray Anderson was sitting. There is a contention that the gun held by one of the Smiths went off acidentally; the charge going in the ground. Some of this evidence seems to be reconcilable with the fact that only two shots were fired. It is certain that Ray Anderson fired one shot, for it killed Otto Smith, and it is evident that another shot was fired that entered the ear. The testimony leads to the dispassionate conclusion that, as Anderson approached, the Smiths began to get out of their buggy, and the Smith who had the gun was on the side of the buggy next to where Anderson would necessarily pass, and the range of the shot in the auto indicates that that shot was fired before Anderson reached the point exactly opposite where the Smiths were. Further details we think are unnecessary to state.

After appellant left Ray Anderson’s residence with Ray’s wife and child, Ray went to see a neighbor to secure his services to look after his place and stock during his absence, with a view of going to his father’s residence that evening or night. After doing this, en route to his father’s he stopped at a church where services were being conducted, and while there he had a conversation with three parties, the substance of which was that he asked them if Mrs. Smith, then wife of deceased, was in the congregation. None of them seemed to know, and upon investigation it was determined she was not present. The theory of the state was that he was looking for Otto Smith that night. The court charged the jury, with reference to this, that they should not consider these' statements and the acts and conduct of Ray Anderson at the church that night in connection with the conversation with the three witnesses for any purpose, unless they should find a conspiracy existed between himself and his father. Exception was reserved to this charge as being insufficient and of a material disadvantage to appellant before the jury. We are of opinion the criticism of the charge is correct. If there was no conspiracy shown, this testimony was seriously detrimental, because it was used to impute a concert of action and previous combination and purpose to kill on the part of Ray Anderson in pursuance to an agreement with his father. If this conspiracy did not exist, then clearly the acts and conduct of Ray Anderson were inadmissible, as the court stated, for any purpose, and should never have gone to the jury.

It will be noticed that the conspiracy, if shown at all, is by circumstances, and in the mind of the writer not very cogent. In giving this charge the court should have instructed the jury that the acts and conduct of Ray Andeson that night could not be used as evidence of a conspiracy between himself and his father. These were but the acts, if a conspiracy existed, of a coconspir-ator, which would not be evidence of the existence of a conspiracy. A conspiracy in this case cannot be proved by these declarations of Ray Anderson. It must be proved aliunde, and the court should have instructed the jury that they should and could not consider such testimony to show a conspiracy between Ray Anderson and his father, appellant. If the jury should conclude there was a conspiracy, then these acts and declarations could be considered by them, but, on the other hand, if there' was doubt in Ikeir minds as to the conspiracy, they may have used this conduct and these acts and declarations of Ray Anderson to prove such conspiracy or aid in so doing. This was not permissible, and the jury should have been so instructed. The criticism of the charge is correct, and of such a nature as to require a reversal of the judgment. There are quite a number of cases which might be cited, but we cite Roebuck v. State, 85 Tex. Cr. R. 524, 213 S. W. 656; Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 947; Hudson v. State, 43 Tex. Cr. R. 420. 66 S. W. 668; Wallace v. State, 48 Tex. Cr. R. 318, 87 S. W. 1041; Smith v. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991.

It is not questioned by either side that appellant did nothing at the time of the homicide, except to drive his car as he was passing the Smiths. He had no gun and did no act, and the only theory upon which he can be found guilty or connected with that homicide, so as to justify a conviction, would be by reason of the fact of a pre-existing conspiracy, in which he advised or aided his son, or encouraged him to do the killing, and in connection with that, that he was present at the time of the homicide. His mere presence at the time of the homicide without some previous encouragement or advice on his part to his son Ray to' kill should not be used against him to show guilt. All the circumstances relied upon by the state were remote in their bearing on the existence of a conspiracy. It is therefore the more necessary to guard the jury against reaching an illegal and improper conclusion from the acts and conduct of Ray Anderson until there had been first a conspiracy established.

Another error assigned is the action of the court in permitting the witness Potts to testify as follows;

“Well, the night before Friday night, me and another fellow we had had a little racket ourselves and he (Ray Anderson) walked up and whispered to me and said, ‘I heard you pulled you off one last night,’ and I said, Wes, don’t say anything about it,’ and he says, T am going to pull me off one to-morrow if the l-ight party is in town,’ and I says, ‘You are?’ and that is all I remember being, said.”

We are of opinion .this testimony was not admissible. It is a general statement by Ray Anderson that he was going to “pull off one to-morrow if the right party was in town.” Who this was or what it meant, or whom he referred to, is not specified or indicated. He was in town the next day, and if he referred to deceased, deceased was in town also, and he did not have any disturb-anee with him. In fact, he left town, at the isuggestion of his father, for fear there might be trouble. But there is nothing in this testimony to individuate or specify the deceased as the party with whom he was going to have this prospective trouble. This testimony should not have gone to the jury; but, inasmuch as the court permitted it, he should have instructed the jury not to consider it for any purpose unless a conspiracy was shown, and that said remarks related to deceased, and then they should have been instructed that this testimony could not be used to prove the conspiracy.

The judgment is reversed, and the cause remanded. 
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