
    Bob Hext v. The State.
    No. 9976.
    Delivered March 17, 1926.
    Rehearing denied appellant and State April 21, 1926.
    1. —Murder—Accomplice—Charge Erroneously Refused.
    Where, on a trial for murder, the defensive theory, which was supported by evidence being that appellant was not a principal offender, but if guilty, was an accomplice, it was reversible error for the court to fail to submit that issue affirmatively in his charge. Following Bean v. State, 17 Tex. Grim. App. 60, and other cases cited.
    
      2. —Same Continued.
    It is well settled as the law of this state, that if the appellant furnishes the means by which a homicide is committed by others, but is absent at the time of its commission, and is not then doing something in furtherance of the common design under the law of principals, so as to make him constructively present, then appellant can not be convicted as a principal under our statute and under an indictment charging him as a principal with the commission of the offense. See Dubose v. State, 10 Tex. Crim. App. 230, and other cases cited.
    
      3. — Same—Statement of Accused — Under Arrest — Improperly Admitted.
    Where, on a trial for murder, it was error to permit the sheriff .to testify to a statement made to him by the appellant while under arrest, and in the custody of the witness, under the statute and authorities in this state, the testimony should have been excluded. See Art. 810 Vernon’s C. C. P. Following Reynolds v. State, 199 S. W., 636, and other cases cited. Also see opinion on rehearing.
    ON REHEARING.
    4. — Same—Sufficiency of Proof — Practice on Appeal.
    While this court in reviewing some records before us, announces the views of the court on the sufficiency of the evidence, this is not the rule where there are errors of procedure in the record which demand the reversal of the judgment, for the reason that the evidence upon another trial may be different from that contained in the record before us. Being satisfied with the views expressed in the original opinion, the motion for rehearing by both the State and appellant are overruled.
    Appeal from the District Court of Cottle County. Tried below before the Hon. J. H. Milam, Judge.
    Appeal from a conviction of murder, penalty twenty-five years in the penitentiary.
    This is the second appeal in this case. The first appeal will be found in 100 Texas Grim. Rep., 24, 271 S. W., 81, where a sufficient statement of the facts is recorded.
    
      G. E. Hamilton, W. D. Wilson, James M. Whatley and Williams & Masten, for appellant.
    
      Wm. B. Combest, District Attorney; Sam D. Stinson, State’s Attorney and Robert M. Lyles, Assistant State’s Attorney, for the State.
   BERRY, Judge.

The offense is murder and the punishment is twenty-five years in the penitentiary.

This is the second appeal of this case. Disposition of the first appeal will be found in 271 S. W., p. 81, where a sufficient statement of the facts is recorded.

Appellant complains at the court’s action in refusing to give the statutory definition of an accomplice and to affirmatively instruct the jury that if defendant was only an accomplice he could not be convicted under the indictment in this case. The charge of the court failed utterly to submit this issue to the jury and defendant excepted to the court’s failure to do so and such failure was manifestly error. Bean v. State, 17 Texas Crim. App., 60; Phillips v. State, 67 S. W., 328; McAllister v. State, 76 S. W., 760; Davis v. State, 117 S. W., 159; Jones v. State, 122 S. W., 31; Menefee v. State, 149 S. W., 138. From these cases the following rule is easily and clearly deducible, to wit:

“If an appellant furnishes the means by which a homicide is committed by others but is absent at the time of its commission and is not then doing something in furtherance of the common design under the law of principals, so as to make him constructively present, then appellant cannot be convicted as a principal under our statute and under an indictment charging him as a principal with the commission of the offense. In this connection, we think it clear that in addition to the foregoing charge, the jury under the peculiar facts of this case should have been instructed clearly and' pertinently that if another or others committed this offense without the guilty participation of the appellant, then he would not be guilty. Dubose v. State, 10 Texas Crim. App., 230; Kirby v. State, 93 S. W., 1030; Wheeler v. State, 121 S. W., 166; Ward v. State, 158 S. W., 1126.

Appellant also complains at the court’s action in permitting the witness Jones to testify in effect that the appellant told him while appellant was in jail and in the custody of Jones, the sheriff of Dickens County, that he had not purchased any strychnine on or about the 29th day of March, 1924, nor at any other time. On a former appeal of this case, the present Presiding Judge of this Court held that this testimony was not admissible. It is clear and certain that the appellant was under arrest and in the custody of the very witness who gave this testimony at the time the statement is alleged to have been made, and under the statute and authorities in this State, the testimony should have been excluded. Art. 810, Vernon’s C. C. P. Reynolds v. State, 199 S. W., 636; Clark v. State, 207 S. W., 98; Brown v. State, 213 S. W., 658; Dover v. State, 197 S. W., 191. As above stated, this identical question was. passed on by this court on a former appeal of this case and it is to be presumed that the trial court recognizes the rule that the holding on a former appeal is the law of the instant case and on another trial will not overlook the necessity of excluding this testimony.

As the evidence in this case may be different on another trial, we do not deem it necessary or proper to discuss its sufficiency in the instant case.

For the errors discussed, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.

MORROW, Presiding Judge.

— Jones, the sheriff, was permitted to testify that after the appellant’s arrest and while he' was in jail, he had a conversation with the said Jones in which he said that he had not purchased any strychnine at Spur on the evening of the 29th of May, 1924. He said that he did not purchase any strychnine; that he had not been in the drug store for some two or three weeks; that he had purchased no strychnine from Jack Slayton. On the former appeal, the opinion was expressed that this testimony was not admissible. See 100 Texas Crim. Rep., 27. It was received upon the present trial over the objection of the appellant, and State’s counsel insists that it was properly received. The statute inhibits the use against one accused of crime of a confession made while under arrest unless it comes within some of the exceptions embraced in the statute. See Vernon’s Texas Crim. Stat., Vol. 2, Art. 810, Revision of 1925, Art. 725. The purpose and effect of the statute is to prevent the prosecution from using against the accused by the testimony of the officer having him under arrest of a verbal statement made by the accused which the State seeks to use in proving the guilt of the accused. This we understand to be the effect of many decisions of this court. See Heman v. State, 42 Texas Crim. Rep., 464; Bailey v. State, 40 Texas Crim. Rep., 150; Dover v. State, 81 Texas Crim. Rep., 554, and numerous cases therein cited. See also Riley v. State, 93 Texas Crim. Rep., 206; McClure v. State, 95 Texas Crim. Rep., 61; Hill v. State, 95 Texas Crim. Rep., 501; Brent v. State, 89 Texas Crim. Rep., 545; Dodd v. State, 82 Texas Crim. Rep;., 139; Willoughby v. State, 87 Texas Crim. Rep., 40; Mayzone v. State, 88 Texas Crim. Rep., 98. From Branch’s Ann. Texas P. C., Sec. 59, we take the following statement:

“The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the State as a criminative fact against him.”

Supporting this analysis of the decisions, Mr. Branch cites many cases, among which are Johnson v. State, 43 Texas Crim. Rep., 476; Fulcher v. State, 28 Texas Crim. App., 465; Williams v. State, 10 Texas Crim. App., 527; Parks v. State, 46 Texas Crim. Rep., 104. In many of the cases cited by Mr. Branch and referred to above, the effort was, as in the present case, to obviate the force of the statute by the contention that the declaration imputed to the accused was exculpatory upon its face. In the present case, the appellant did not testify, but even if he had done so, his declaration while under arrest, though not complying with or coming within any of the requirements of the confession statute, was not available for impeachment purposes. See Bailey v. State, 40 Texas Crim. Rep., 151; Hill v. State, 72 Texas Crim. Rep., Ill; Williams v. State, 89 Texas Crim. Rep., 339; Amer. Law. Rep., Vol. 9, p. 1360, note; Morales v. State, 36 Texas Crim. Rep., 234, overruling previous contrary announcements. This testimony was used against the appellant in connection with the testimony of other witnesses for the State asserting that appellant had purchased strychnine on a certain occasion.

The indictment charged that the appellant mixed poison with medicine with the intent to kill Pete Hext. To convict under this indictment, the proof must show that thé appellant actually put poison in the medicine or that he was connected with the transaction in such a way as to render him a principal offender under some of the provisions of the statute defining a principal offender. See Vernon’s Texas Crim. Stat., Vol. 1, Arts. 75, 76, 77 and 78.

Appellant insists that if he had guilty connection with the death of the deceased, the evidence goes no further than to put him in the position of an accomplice. The facts, as they appeared upon the former appeal, are summarized in the opinion. (See 100 Texas Crim. Rep., 24.)

The evidence in the former appeal is not exactly the same as that in the present instance. To connect the appellant with the alleged offense, the State relied upon the circumstances detailed by the witness Stokes. Appellant was a son of the deceased but was not living with his father. He had been away for some days. According to the testimony of Stokes, the appellant, the witness and one Alexander, went to the home of the deceased. They went there in an automobile and took the appellant with them. We quote from the witness as follows:

“When we got over there, we all stayed in the car except Bob. * * * Bob got out and went to the house. * * * In going over there we went by Mr. Hickman’s where Bob was living * * * While Bob went to the House, Howard Alexander and Walter Stokes and I were out in Howard’s car. We did not get out of the car.”

According to the witness, the car was some distance from the house. Appellant said he was going to get his mail. He returned to the car in a few minutes, not over five. The witness further said:

“I do not know whether he went in the house or not. I did not look to see. As to whether I know whether he stopped at the house, or whether he turned and went to the lot, will say that he went to the door. I know he went to the house. I saw him go to the door. As to how it came that I did not see him go to the house, will say I just did not see it. I was not noticing.”

On behalf of the appellant, his eleven-year-old sister, Merl Hext, testified that she observed the appellant when he got out of the car and all the time until he returned thereto. Appellant started to open the door and asked the witness if there was any mail for him. Receiving a negative reply, and without entering the house, the mother of the appellant called him to the lot and had a conversation with him in which she asked him if he expected to eat dinner with them on the following day.

Pete Hext, a son of the deceased and brother of the appellant, testified that the appellant left his father’s home, took his clothes and went to Mr. Hickman’s house some two weeks before the death of the deceased. According to his testimony, the witness also left his father’s home about a week before his father’s death. There was nothing unusual in the appellant’s leaving as he had spent considerable time away from home at intervals for several years. The witness, who was seventeen years of age at the time, had left his father’s home on Sunday. A week before the death of the deceased and before the witness left, he was badly beaten with a rope by the deceased. He was so badly beaten that he could not walk but went to bed for two days. The witness said that there were family “spats that sometimes the appellant and his father were on friendly terms, that at other times they were not; that the same was true with reference to the other members of the family.

On the theory that the evidence suggests that the appellant may not have entered the home of deceased at any time after obtaining the strychnine, it may have been given to his mother or other members of the family with a criminal intent, the court was not justified in refusing to give an instruction to the jury that if such were the facts, appellant’s connection with the homicide would not have been as a principal offender but as an accomplice, and that there being in the indictment no count charging that he was an accomplice, he - could not be convicted under the indictment. The precedents noted in the original opinion are in point; also Burow v. State, 210 S. W., 805; Avila v. State, 268 S. W., 754, and citations found therein.

There was evidence tending to show that the form of strychnine which brought about the death of the deceased was crystallized and that the character of the strychnine which, according to the State’s theory, the appellant had purchased at a drug store was powdered and not susceptible of being converted into crystals. Upon this fact and others, notably the evidence indicating that the appellant was not in the house in which the deceased died at a time giving him an opportunity to commit any offense by his direct act, and the fact that if the evidence of his culpability as an accomplice was of such cogency as to support a conviction, that the absence of that allegation in the indictment precluded his conviction as an accomplice, appellant’s counsel insists that there should be a definite announcement by this court that the evidence is insufficient to support the conviction. Upon this point we are referred to Burow v. State, 210 S. W. Rep., 805, and others in which, where there were no errors of procedure which authorized a reversal of the judgment, this court reviewed the evidence and expressed its opinion thereon. In the instant case, we find errors of procedure which, in our judgment, render a reversal of the, judgment necessary. We content ourselves, therefore, with addressing ourselves to the errors mentioned without anticipating the evidence that may be forthcoming upon another trial, should the State elect to pursue the prosecution.

The motions for rehearing of both the State and the appellant are overruled. Overruled.  