
    CANNON v. STATE.
    (No. 4945.)
    (Court of Criminal Appeals of Texas.
    March 20, 1918.)
    1. Witnesses <@=>380(5) — Impeachment^-Pri-oe Statements.
    A witness can be impeached by prior statements only when his testimony is actually prejudicial to the case of the party calling him, and such party is surprised, and so not where his testimony is neither favorable nor prejudicial.
    2. Criminal Law <@=o423(1) — Evidence-Declarations OF COCONSPIRATOE.
    Statements of another person prior to the commission of the offense are admissible; they being made under circumstances tending to show that he and defendant were coconspira-tors.
    3. Criminal Law <@=>424(3) — Evidence—Declaration of Coconspiratoe.
    Declarations of a coeonspirator, made in the absence of defendant subsequent to the completion of the crime, are inadmissible, except where they are res gestae, or made by the co-conspirator while in possession of the fruits of the crime.
    4. Criminal Law <@=>814(6) — Trial — Instructions — Conformity to Indictment-Person Unknown.
    Where one count charges intent to kill W., and another, as authorized by Vernon’s Ann. Code Cr. Proe. 1916, art. 456, “some person to the grand jury unknown,” a charge authorizing conviction if intent was to kill W. “or another person” is improper; the charge should conform to the indictment.
    Appeal from District Court, Motley County; J. H. Milam, Judge.
    C. I. Cannon was convicted of poisoning a reservoir with intent to kill and injure, and appeals.
    Reversed and remanded.
    Bouldin & Surles, of Matador, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was charged with poisoning a reservoir of water with intent to kill and injure persons to the grand jurors unknown, and in another count with intent to injure and kill W. W. Waldrup. His trial resulted in a conviction and sentence to confinement in the state penitentiary for a period of four years.

The witness Edwards, while a convict in the penitentiary, made and swore to a statement in writing containing facts incriminating appellant. The state introduced him as a witness, and he failed to give any testimony either favorable or derogatory to the state. He was then required, over the objection of the appellant, to identify the written statement and to testify as to its contents and that he made it in the absence of appellant and while he was confined in the penitentiary. He added on cross-examination that it was made for the purpose of securing his release, and that it was not true. This evidence was hearsay. The only rule of law of which we are conversant which would permit testimony of this character to be introduced would be occasioned by circumstances authorizing the party introducing the witness to impeach him by showing he had made contradictory statements. This can only be done when the witness gives testimony which is actually prejudicial to the case of the party offering him, and when such party is surprised by his adverse testimony. Wharton’s Criminal Evidence, § 484a, p. 1003, vol. 1; Bailey v. State, 37 Tex. Cr. R. 579, 40 S. W. 281; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Skeen v. State, 51 Tex. Cr. R. 39, 100 S. W. 770. In Branch’s Ann. P. C. p. 95, § 164, there are collated a great number of eases supporting the rule stated.

We think the objection to the part of the testimony of R. H. Howell to statements which he claims were made to him by W. R. Tolbert prior to the time the offense was committed- was not well taken. The alleged statements were made under circumstances tending to show that Tolbert and appellant were coconspirators.

The testimony of the witness Howell relating to alleged conversations with Tolbert subsequent to the commission of the offense, we think, were obnoxious to the rule which rejects the declaration of a coconspirátor made in the absence of the accused subsequent to tlie completion of tlie crime to which the conspiracy related. Draper v. State, 22 Tex. 400, and other cases listed in Branch’s P. C. p. 354, §i 695. There are exceptions to this rule, admitting declarations which are res gestas or made hy the cocon-spirator while in possession of the fruits of the crime. Eggleston v. State, 59 Tex. Cr. R. 551, 128 S. W. 1105, and other cases cited in Biranch’s Ann. P. O. § 695, supra. The facts involved do not, in our opinion, come within the exception.

The court submitted to the jury two counts of the indictment only, namely, that charging the poisoning with intent to kill Waldrup, and that charging poisoning with intent to kill some person to the grand jurors unknown. The matter was submitted to the jury in a paragraph authorizing conviction if the poisoning was to “injure or kill W. W. Waldrup or any other person.” Complaint is made of that part charging “any other person.” Our law (article 456, O. O. P:) requires the name of the person intended to be injured to be set out, if known, but if unknown to the grand jurors that fact may be alleged, but it must be proved. Vernon’s C. C. P. p. 202; Brewer v. State, 18 Tex. App. 456. We do not think that a charge authorizing the jury to convict if the intention was to kill “any other person” would be justified under this allegation. The charge should conform to the indictment, namely, instruct that the conviction would be authorized if the act was done with the intent to injure some person to the grand jurors unknown. Such a charge, however, should not be given unless there was proof of the fact.

Because of the errors pointed out, the judgment of the lower court is reversed, and the cause rerbanded.

PRENDERGAST, J., absent. 
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