
    HUSTEAD v. STATE.
    (No. 6590.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.
    Rehearing Denied June 13, 1923.)
    1. Criminal law <©=>1090(16) — Overruling motion for new trial not reviewed in absence of bill of exceptions.
    On appeal overruling a motion for a new trial cannot be reviewed where no bill of exceptions was reserved.
    2. Criminal law <©=>1099(13) — Statement of facts bled after adjournment of term of trial court cannot be considered.
    A statement of facts filed in the trial ¿¡ourt after the adjournment of the term át which the case was tried cannot be considered on appeal.
    3. Affidavits <©=>5 — Taking by appellant’s attorney of affidavits attached to motion for new trial is objectionable.
    The taking by appellant’s attorney of affidavits attached to a motion for a new trial is objectionable.
    On Motion for Rehearing.
    4. Criminal law <©=3910 — Grant of new'trial as to some of defendants does not require grant of new trial as to all, several others being under indictment.
    In a prosecution for conspiracy to commit theft in which several were indicted, the fact that two defendants tried with the accused were granted a new trial on an amended motion, in which amendment the accused did not join, does not entitle the accused to a new trial; it not being assumed in the absence of an affirmative showing, that the new trial was granted because of a lack of evidence to convict the two defendants in question, since the reversal may have been for error committed in admitting evidence as to the defendants in question, and it cannot be assumed that the evidence failed to show a conspiracy between the accused and. others indicted, the cases against whom were not shown to have been dismissed.
    5. Conspiracy <©=>23 — “Conspiracy” defined.
    A “conspiracy” is an agreement entered into between two or more persons to commit one of the offenses named in articles 1433-1441, Pen. Code 1911.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Conspiracy.]
    6. Conspiracy <©=323 —If of two conspirators one is acquitted, or evidence does not uphold his conviction, conviction of other cannot stand.
    Where two persons are charged with conspiracy and there has been an acquittal as to one, or the evidence fails to show guilt as to one, conviction as to the other cannot stand, because there must be at least two persons acting together before any conspiracy could exist.
    Appeal" from District Court, Wichita County ; P. A. Martin, Judge.
    George JIustead was convicted of conspiracy to commit theft, and he appeals.
    Affirmed. ■
    McLean, Scott & Sayers, of Fort Worth, and- Chas. L. Black, of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for conspiracy to commit the crime of theft, with punishment at two years’ confinement in- the penitentiary.

Appellant went to trial on a plea of “not guilty.” After the state’s evidence was introduced the plea of “not guilty” was withdrawn and a plea of guilty entered. No bills of exception were reserved to any part of the proceedings, and no statement of facts adduced upon the trial accompanies the record. Appellant sought a new trial on the ground that his attorney coerced him into entering the plea of guilty. This "necessarily raised an issue of fact for the consideration of the trial court. No bill of exception having been reserved to his action in overruling the motion for new trial, we are not in a position to review the question.. What purports to be the evidence taken upon a hearing of the motion accompanies the record, but cannot be considered. The trial term adjourned July ,4, 1921. The statement of facts in question was not filed in the court below until September 2, 1921. To be considered such a statement of facts must be filed within the term. Sec-" tion 598, Branch’s Ann. Pen. Code; Jurado v. State, 91 Tex. Cr. R. 490, 239 S. W. 617; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 217, 23 A. L. R. 1374, and cases cited in both opinions. We also observe that many affidavits attached to the motion were taken before appellant’s attorney. This has been repeatedly held to be objectionable.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant has supplemented the record, and now raises a question which was in no way presented upon the original submission.

The second count of the indictment charged that G. A. McDonald, Terry Ballihorn, R. W. Burlsmith, Adolph Michna, George Hustead (appellant), Arthur Roberts, B. F. Beal, Ernest Tallen, and Freddie Bishop, conspired to commit" felony theft. At the April term of court, T921, Hustead, McDonald and Michna entered pleas of guilty. At the December term, 1921, the state dismissed as to Beal and Ballihorn. The record is silent as to Burlsmith, Roberts, Tallen, and Bishop. So far as we know, the prosecution is still pending as to them, as well as against McDonald and Michna.

The contention is now made that a new trial having been awarded McDonald and Michna, who were convicted at the same time as appellant, ■ that a new trial should also' have been awarded him, and that it was fundamental error not to have done so, ánd should be corrected by this court, notwithstanding no exception was taken to the court’s action. As supporting this position cited People v. Labow, 282 Ill. 227, 118 N. E. 895; Reg. v. Gompertz, 115 English Reprint, 1491; State v. Jackson, 7 S. C. 283, 24 Am. Rep. 476; Isaacs v. State, 48 Miss. 234; Commonwealth v. McGowan, 2 Pars. Eq. Cas. (Pa.) 341; Feder v. U. S., 257 Fed. 694, 168 C. C. A. 644, 5 A. L. R. 370; Casper v. State, 47 Wis. 535, 2 N. W. 1117. Without reviewing the cases at length we think; they are not decisive of the question before us in the condition we find the record in the instant case.

On May 21st there was filed a motion for new trial purporting to be for Hustead, Mich-na and McDonald. It was overruled on June 21st. It appears an amended motion was filed for McDonald and Michna, although it is not set out in the transcript. In the supplemental transcript it is shown that, on July 1st the court granted a new trial to them on the amended motion, but the order expressly recites “said motion being a separate and distinct motion from any heretofore filed, and not being joined in any way by the defendant, Geo. W. Hustead.” The ground upon which Michna and McDonald were granted new trials is not shown. In the absence of the facts proven we must presume everything in favor of the validity of the judgment and orders unless their incorrectness appears from the record. It may be the evidence showed McDonald and Michna to be not guilty, but did show appellant to be guilty of conspiring with one or more of the others, viz.: Burlsmith, Roberts, Tallen, and Bishop.

A conspiracy is an agreement entered into between two or more persons to commit one of the offenses named in chapter 1, tit. 18, P. O. We quote from Corpus Juris, vol.. 12, § 245, as follows:

“It is not necessary that all the defendants charged with conspiracy be shown to be guilty. It will be sufficient if the guilt of at least two is shown. In these circumstances the charge against the other defendants will be treated as surplusage. And inasmuch as it is sufficient if the guilt of at least two is shown, it is not improper to nol. pros, as to any number of defendants, leaving two. If only three of four defendants indicted for conspiracy are on trial, the jury may acquit two of such defendants, and convict the other of conspiracy with the absent one. If one of several defendants pleads guilty, the jury may find one of the defendants on trial guilty of conspiring with him and acquit the others. And . on an indictment of two persons and others unknown for a conspiracy, the acquittal of one does not áf-fect the;plea of guilty of the other." One of the defendants may be acquitted and the other convicted if it appears to the satisfaction of the jury that other persons conspired with the defendants against whom the verdict of guilty is rendered. So where one of three persons charged with conspiracy dies before the trial, and one is acquitted, the third may,, notwithstanding this fact, be tried and convicted. It has also been held that the fact» that one of the conspirators had not been indicted, in order that he may be a witness for-the prosecution, and that the prosecuting officer, as he is authorized to do, procures a. dismissal of his own motion of the indictment as to two others, do not bar a- conviction of the remaining conspirator. But, inasmuch as two persons are necessary to a conspiracy, if two-are tried and one is acquitted, the other must also be acquitted; and the same is the case-where a nolle prosequi is entered as to one, although there is some authority to the contrary. " So if more than three are tried and all but one are acquitted, such one cannot be-convicted, where, there is no evidence that any person other than the one named in the indictment had joined in the conspiracy.”

-Many authorities are cited supporting the various propositions announced in the-foregoing excerpt. -The record before us does-not present a ease- where only two persons are charged with conspiracy and there has been an acquittal as to one, or the evidence-should fail to show guilt as to one; in such an event the conviction as to the other could not stand because there must be at least two-persons acting together before any conspiracy could exist. In the absence of ah affirmative-showing in the record we would have no right to assume that the hew trial was granted because the evidence failed to show guilt as-to McDonald and Michna. It may have amply demonstrated their guilt, and the motion, have been granted for some error during the-trial in admitting evidence improperly against them. Neither can we assume that the evidence failed to show a conspiracy among appellant and some of the other defendants; named in the indictment, the cases against whom are not shown to have been dismissedL In the ábsence of the facts proven we are required to presume that the action of the trial' court was correct in so far as it would depend on the facts.

For the reasons stated the motion for rehearing will be overruled. 
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