
    SPATES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 7, 1911.
    Rehearing Denied June 23, 1911.)
    1. Homicide (§ 234) — Evidence—Participation as Accomplice.
    Evidence that D. came up with accused and another on the evening of the homicide, but some time before it was committed, and, after they had all drunk whisky, accused, referring to the place were the homicide was committed, remarked, “There is where I will do the work to-night,” to which D. replied, “Uh, huh,” and left and at the time of the killing was conclusively shown to have been at a point in the country where it would have been impossible for him to have taken any part in the murder or to have done any act in furtherance of the crime, was insufficient to make him an accomplice, under the rule that concealment of knowledge that a crime is to be committed will not make the concealing party an accomplice or accessory before the fact.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 234.]
    2. Homicide (§ 166) — Motive—Robbery—In-culpatory Evidence.
    Where, in a prosecution for homicide, there was evidence that robbery was the sole motive of the murder, evidence that deceased had in his possession two $20 bills and other currency the evening before he was killed, that he exhibited the same to the witness, and that there was only 15 cents on his body when found the next morning, was admissible.
    ' [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 329; Dec. Dig. § 166.]
    3. Homicide (§ 173) — Evidence—Weapons.
    Where deceased, a negro, was killed by blows on the head from a blunt instrument, evidence that, when his body was found the next morning, the witness and others looked for signs of a scuffle, and if possible to find the weapon used, and that a piece of two-inch iron pipe with blood stains and negro hair on it was discovered, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    4. Homicide (§ 173) — Evidence—Post Mor-tem Examination.
    In a prosecution for homicide, it was proper to permit the physician who made the post mortem examination to testify that deceased had been hit with a heavy instrument, to describe the places where he was struck, and the effect thereof.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    5. Homicide (§ 169) — Evidence.
    In a prosecution for homicide for robbery, the court properly permitted a witness to testify that defendant came to witness’ store on the same night prior to the killing, explaining why he could not pay an account, and offering to give a mortgage to secure additional credit, that he had been drinking, and that he went to another store the same night and purchased a quantity of goods, including a pair of No. 7 ■shoes, for which he paid cash; an accomplice having testified that after deceased was killed defendant bought and gave to him a pair of No. 7 shoes, and that defendant had been drinking.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    6. Criminal Daw (§ 693) — Trial—Reception of Evidence — Objections.
    An objection to evidence already in is too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1630; Dec. Dig. § 693.]
    7. Criminal Law (§ 687) — Reception of Evidence-Time.
    The court, in its discretion, may permit the prosecution to offer additional evidence at any time before the argument is closed, if necessary to the due administration of justice, as provided by Code Or. Proc. 1895, art. 698.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1621; Dec. Dig. § 687.]
    Appeal from District Court, San Augustine County; W. B. Powell, Judge.
    D. D. Spates was convicted of murder, and lie appeals.
    Affirmed.
    H. B. Short and Foster & Davis, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted in the district court of San Augustine county, charged with murder, and on a trial he was found guilty and his punishment assessed at death.

It appears from the record that Martin Allen was night watchman at a planing mill in San Augustine, about a quarter of a mile from the courthouse. On June 4th of last year he appeared at the mill at 6 o’clock in the evening and was in sound health apparently. The next morning he was dead; his position showing that he died while engaged in his work. With some kind of instrument blows had been rained on his head. His skull was crushed, and the physician says death was instantaneous. He was shown to have had 40 odd dollars on his person when he went to work on Saturday evening. Sunday morning he was dead with only 15 cents in his pockets. A piece of two-inch iron pipe, weighing 8 to 10 pounds, was found near the body, with blood stains and hair attached to it. He stayed alone at the mill at night, and he met death with no eye to see except that of the murderer and his accomplice, if the testimony is to be believed.

Appellant’s first ground in the motion for a new trial questions the sufficiency of the evidence, and if the witness Stepney Duffield is an accomplice, as contended by appellant, the contention must be sustained, or, if the evidence raises the issue, then the judgment must be reversed. Fred Harris is an admitted accomplice, and he testifies that Stepney Duffield came to the home of appellant on the day of the killing, and that appellant and Duffield had a conversation in his presence, but he did not hear it; that, after Duffield left, appellant and the witness Harris started to their work, and, when they got to a clump of bushes near the mill, appellant suggested that they wait until Duffield came and they would all get a drink; that, when Duffield came, he had whisky, and they all drank, and appellant remarked, “There is where I will do the work to-night,” and there is where Martin Allen was murdered that night. The witness saying Duffield replied, “Uh, huh,” and left. This is all the testimony that tends to make Duffield an accomplice. Duffield denies this testimony, and shows by uncontroverted testimony that he had no part in the killing; witnesses placing him at a point that night in the country where it would have been impossible for him to have taken any part in the murder, or to have been doing any act in the furtherance of the crime. So the question is: Does the fact that a witness testifies that a person is told, in advance of a crime, that it is going to be committed, raise the issue that he is an accomplice? No other fact is elicited further than appellant talked to him that day at his home, and later was told by appellant that he was going to do the work that night. He is not shown to have advised it, consented to it, nor approved it, only saying, according to the witness, “Uh, huh,” at once leaving, and not returning to town any more until the day after the murder. In the case of Elizando v. State, 31 Tex. Cr. R. 243, 20 S. W. 560, this court holds: “The fact that she knew that a conspiracy had been entered between her husband and defendant to commit the crime, and subsequently heard defendant’s confession of guilty participancy in the deed, does not constitute her an accomplice.”

Mr. Wharton says: “The concealment of the knowledge that a felony is to be committed will not make the party concealing it an accessory before the fact, nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient to constitute the offense.” Whart. on Hom. §§ 345, 346. See, also, Noftsinger v. State, 7 Tex. App. 324; Smith v. State, 23 Tex. App. 357, 5 S. W. 219, 59 Am. Rep. 773; Schackey v. State, 41 Tex. Cr. R. 255, 53 S. W. 878. So we hold that the court did not err in not submitting the issue of whether or not Duf-field was an accomplice. No charge was requested in this respect, and no exception taken to the failure of the court to submit this issue to the jury, and it is raised for the first time in the motion for a new trial; but as the death penalty was assessed, and the sufficiency of the corroboration of the accomplice Harris depends on whether or not Duffield was also an accomplice, we have carefully read and re-read the evidence, and we do not find evidence that would raise this issue under the decisions of this court, and, taking this view of it, the evidence is abundant to corroborate the accomplice and establish the guilt of defendant, for Duf-field testifies to a confession of defendant that he was the person who killed Martin Allen in the dead hours of night, and the. language used would indicate that he felt proud of his ability to commit such a heinous crime. Gracy v. State, 57 Tex. Cr. R. 68, 121 S. W. 705.

Complaint is made of the charge of the court on accomplice testimony. When that paragraph of the court’s charge is taken as a whole, it is not subject to the criticism contained in the motion, and the charge is in accordance with the holdings of this court in King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135, and cases cited.

The other grounds relate to the admissibility of evidence. There was no error in the court permitting the witness Price to testify that deceased was in possession of two $20 bills and other currency the evening before the killing when he came to go to work, and that it was exhibited to the witness; nor that deceased had no money on him next morning except 15 cents. The accomplice Harris testifies that robbery was the sole motive of the murder.

Neither was there any error in permitting the witness to testify: “We looked around to see if I could find any signs of a scuffle, and to find, if possible, if they left the weapons or weapon used that he was hit with. I was sure he had been killed. The bruises showed that, and I found a piece of pipe. It was a two-inch pipe, iron pipe. It was something like two feet long, maybe 28 inches long. It was an iron pipe. It was what is commonly known as a two-inch pipe. I would know that piece of pipe if I were to see it. That is the piece of pipe right there. There was small blood stains and negro hair on it. Martin Allen was a negro with very kinky hair. I found the piece of pipe six or eight feet from the body. It had evidently been used pretty hard, as it was dinted a little bit, not bent, but flattened a little. I suppose that piece of pipe would weigh about 8 pounds, maybe 10, I would not be certain about that, as I am not an expert on guessing weight.”

Neither was there error in the court permitting the witness Dr. Smith to testify : “I was acquainted with Martin Allen, the deceased. I saw him about the 4th or 6th of June, 1910. I saw him down at the Price Lumber Company planer. The first time I saw him, he was laying down right by the side of the machine. I examined him and found some wounds on him. I don’t know as I could describe them exactly. I made a post mortem report, and I have not been able to find it. It was tolerable early in the morning, about 7 or 8 o’clock. It was on a Sunday morning, and he was killed on a Saturday night. 1-Ie had been hit with some heavy instrument, one lick right behind the left ear. I think that fractured his skull. And he was hit right in the center of the back of the head. I don’t think that fractured his skull any. And he was hit kind of up towards the top of his head, a little to the right of the top of his head, and he hit him one lick right over his eye, and made a wound down to the bone about 2% or 2 inches long; but that did not fracture his skull. I think there were four wounds in all. That is the way I remember it now. The wounds were made with some kind of heavy blunt instrument, and the instrument you show me (the one testified by Price) would have been sufficient to produce the wounds.”

The blood and hair on the pipe, together with the character of the wounds, indicate clearly that it was the instrument used in perpetrating the crime, and the witness Duf-iield says that appellant admitted to him that he killed the deceased.

Appellant complains that I. L. Miller was permitted to testify that defendant was in his store that night explaining why he could not pay an account that night, and offering to give a mortgage to secure additional credit, and that he was not as usual and appeared to be drinking; and also complains that the witness Ed Smith was permitted to testify that appellant came to his store that night and purchased a quantity of goods, among which was a pair of No. 7 shoes, and paid him between $7 and $8 in money. The accomplice Harris had testified that, after deceased was killed, appellant had bought and given him a pair of No. 7 shoes, that appellant had been drinking and we think it admissible also to show that at one time that night he claimed to have no money, and at another time the same night he went into another store and was supplied with money, especially in the light of the testimony of Ered Harris, the accomplice, who testified to defendant’s going into these places; that the murder was committed to obtain money, and, after obtaining it from the dead man, the bringing home of those articles purchased at Mr. Smith’s. To take the testimony of these witnesses and isolate it, and consider each by itself, it might seem to be immaterial and irrelevant; but, when we take the record as a whole, the relevancy is apparent.

Sheriff Oupitt testified: “I know of the incident of Martin Allen being killed. I saw Spates often after that every day for a good long time. He did not remain here all of the time up to the time he was arrested. After he left the country, I first saw him at McGregor, Tex. I cannot say just how far that is from here, about 400 miles. Spates is a man with a family. At the time I found out where Spates was, his wife was living with his sister out here on the Davis farm here in the county of San Augustine, about 4 miles west of town. I went out to McGregor, Tex., after Spates. We had a misdemeanor charge against him, and he had a charge of assault with intent to murder in another case, was the principal thing, and I had some other reasons.” When defendant’s counsel stated, “We object to proving anything further,” which objection was by the court sustained, the witness was not pérmitted to state any other reasons. If appellant objected to any testimony already elicited from this witness, he should have objected to it being admitted at the time it was offered.

In another bill appellant complains that after the testimony had been closed, and the prosecution had made its opening speech, and while counsel for appellant was making the opening address, the court permitted the state to offer additional testimony. This is a matter lodged in the sound discretion of the court, and this court would not disturb a verdict on such ground, unless gross abuse of the discretion was shown. In Nutt v. State, 19 Tex. 341, it is held that it is the duty of the court to admit additional testimony at any time before the argument has closed, if'it appears that it is necessary to the due administration of justice. This is statutory. See article 698, Code of Criminal Procedure of 1895, and authorities collated thereunder in White’s Ann. Code Cr. Proc.

The only other assignment of error is the failure of the court to give a peremptory instruction requested by appellant. Taking the testimony of the accomplice as to the mode and manner of the crime, that it was for the purpose of committing robbery, and the old negro had done nothing to forfeit his life, and the corroboration of his testimony by the witness Duffield and the other facts and circumstances in evidence, we cannot say that the testimony is insufficient, or that the punishment assessed is not merited.

Affirmed.  