
    SAPP et al. v. STATE.
    (No. 4241.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.
    On Motion to Revise and Reform Opinion, Dec. 20, 1916.)
    1. Homicide <@=>156(2) — Evidence—Motive.
    In a prosecution of brothers for the murder of the one who had killed the wife of one of defendants, deceased’s repeated declarations that defendant had hired him to kill defendant’s wife and was to pay him money therefor, where the circumstances tended to show that such declarations were brought to defendant’s knowledge, and that he thereupon induced the other defendant to join in killing deceased, were admissible against defendants to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 287; Dec. Dig. <@=>156(2).]
    2. Obiminal Law <@=>673(2) — Motive—Evidence.
    It is neither necessary nor proper to limit the evidence which goes to prove motive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1874; Dec. Dig. <@=>673(2).]
    3. Conspiracy <@=>41 — Evidence—Conspiba-toks — Commencement of Conspiracy.
    One who enters into a conspiracy to commit a crime before the ultimate object of it is completed is deemed a party to it from its inception, and adopts as his own all the preceding acts of the others.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 74; Dec. Dig. <@=>41.]
    4. Criminal Law <@=>423(2) — Evidence—Declarations of Conspirators.
    The declarations or statements by conspirators, even if made before a conspirator entered into the conspiracy, are admissible against him, as well as against those who originally entered into the conspiracy, even though what was said or done by any of the others was done in his absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 990; Dec. Dig. <@=>423(2).]
    5. Witnesses <@=>379(3) — Impeachment — Statements of Witness — Proof.
    In a prosecution for the murder of one who was alleged to have been hired by one of defendants to kill such defendant’s wife in pursuance of a conspiracy to marry and get her money, where a witness for defendant, in contradiction of the state’s testimony, stated that defendant soon after his marriage was very attentive to his wife, and that the relations between them were affectionate, testimony of witnesses that when defendant’s wife was lying dead the defendant’s witness had said that defendant had had her killed, and that it was a cold-blooded murder, and that defendant ought to be arrested, and that everybody knew defendant married his wife for her money, was inadmissible to impeach defendant’s witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. <@=>379(3).]
    6. Witnesses <@=>379(1) — Impeachment—Contradictory Statements.
    In such case, the state might impeach defendant’s witness by proving that she had made declarations prior to her testimony different from what she made along the same line at any other time prior thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. <@=>379(1).j
    7. Criminal Law <@=>450 — Evidence—Opinion Evidence.
    Testimony of a witness that there was not any doubt but that defendants were guilty was a conclusion or opinion, and inadmissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1036; Dec. Dig. <@=>450.]
    8. Homicide <@=>169(1) — Admissibility of Evidence-Circumstances.
    A train conductor’s testimony that there was no doubt that deceased and one of the defendants got off his train at a certain time and place and took an automobile driven by the other defendant was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 341; Dee. Dig. <@=>169(1).]
    9. Witnesses <@=>398(3) — Impeachment — Character.
    Where a state’s witness was asked on cross-examination by defendants’ attorney whether or not she was a common prostitute, and she denied it, none of the officers could testify that her reputation was that of a common prostitute.
    [Ed. Note. — For other cases, see Witnesses,. Cent. Dig. § 1275; Doc. Dig. <@=>398(3).]
    
      10. Homicide @=3289 — Instruction — Evidence.
    In a prosecution of two for murder of a named person, a charge that defendants were indicted for the murder of such person and were on trial for that offense only, and could not be convicted of the killing of the wife of one of the defendants, or of another, but that the jury should consider the evidence as to the killing of those parties only on the question whether defendants killed the named deceased, should be omitted on defendants’ objection; but if necessary to caution the jury on another trial on that point the charge should not tell the jury directly that defendants killed either of those other parties, but should state that if the “testimony so shows or tends to show,” etc.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 594; Dec. Dig. @=>289.]
    11. Criminal Law @=3783(1) — Instructions —Evidence.
    In a trial for murder of one whom the state claimed had been hired by one of defendants to kill such defendant’s wife, a charge that the jury for no other purpose than passing on the question whether defendants or either of them killed the deceased, should consider the testimony offered with regard to the relationship of one defendant and his wife after their marriage should not be given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1874, 1876; Dec. Dig. @=3783(1).]
    12. Witnesses @=3337(5) — Impeachment — Conviction.
    It is always permissible to impeach an accused to show by him_on his cross-examination that he had been indicted or convicted 'of any felony if not too remote.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132,1140-1142, 1146-1148; Dec. Dig. @=>337(5).]
    13. Witnesses @=>337(5) — Impeachment—Examination — Conviction oe Felony.
    It was not permissible to require an accused in testifying to state whether he had committed any other offense, and whether he had been arrested on complaint therefor, if sufficient time had in fact elapsed to show that the grand jury had had an opportunity to investigate and had not found the bill of indictment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132,1140-1142, 1146-1148; Dec. Dig. @=3337(5).]
    14. Criminal Law @=>792(3) — Trial — Instruction — Principals.
    In an instruction defining who are principals, the court should only quote that part of the statute relating to principals, omitting the part not applicable to principals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. @=> 792$).]
    On Motion to Revise and Reform Opinion.
    15. Criminal Law @=>423(2) — Evidence — Declarations oe Conspirators.
    Declarations of a coconspirator are admissible against all the parties to the conspiracy whether they heard it or had it communicated to them or not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 990; Dec. Dig. @=>423(2).]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    E. E. Sapp and Lou Sapp were convicted of murder, and they appeal.
    Reversed and cause remanded.
    F. J. & C. T. Duff, of Beaumont, Mantooth & Collins, Denman & Thomas, and I. D. Fair-child, all of Lufkin, J. J. Collins, of Huntington, and Howth & Adams, of Beaumont, fox-appellants. W. R. Blain, of Beaumont, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were indicted and tried jointly for the murder of Dick Watts.' They were found guilty, and their punishment assessed at 40 and 20 years, respectively, in the penitentiary. The record, statement of facts, and briefs for both sides are very voluminous. There are apparently, however, but few questions necessary to be decided. In view of the disposition we make of the case, we will not state at any length nor discuss the testimony.

The testimony was wholly circumstantial. The theory of the state substantially was that appellant E. E. Sapp originally entered into a conspiracy with others by which it was contemplated and intended that he should marry a rich old widow, he being a young man, manage to get possession of her property, and then make way with or kill her so as to get rid of her and ultimately to divide the property with the other conspirators. It also embraced the making way with or killing the witnesses to the murder of his wife. In fact, it embraced doing any and everything that was necessary not only to kill the woman, but prevent conviction therefor — all to accomplish the end of getting her property and dividing it between the conspirators. That Lou Sapp entered the conspiracy with his brother E. E. after the killing of E. E.’s wife, and included making way with by killing the deceased Watts, who killed E. E.’s wife, and Havard, who was a companion of him at the time and knew all about it, thereby preventing the conviction of E. E. Sapp for murdering his wife, or having it done, and to succeed later in securing her property through a will she had executed in E. E. Sapp’s favor and dividing her property as stated. There was an abundance of proof introduced by the state circumstantially tending to prove the theory of the state.

Appellant has a very large number of bills of exception, some to the introduction of testimony, others to the exclusion of it, and others to charges given and charges refused. Many of them raise the same or kindred questions.

It was established without controversy that the deceased, Dick Watts, killed the wife of E. E. Sapp by shooting her in the back. Appellants claimed this was accidental. The state’s theory was that appellant E. E. Sapp hired Watts to kill her, and that Havard knew all this and was a companion of Watts in this matter. The state introduced the testimony of several witnesses, who testified substantially to Watts’ repeated declarations, and also some by Havard, to the effect that E. E. Sapp had hired him to kill said Sapp’s wife and was to subsequently pay him a considerable sum therefor. The circumstances would tend strongly to show that this was brought to the knowledge of E. E. Sapp, and that thereupon he induced his brother Lou to aid him, and that his brother did aid him, in corralling 'Watts and Havard, getting them drunk, or while drunk, enticed Watts at least away from Beaumont, where they all then were, taking him on the train and in an automobile into the big thicket in Hardin county where they murdered and buried him, and his body was a few weeks thereafter found and identified. All this testimony objected to, as shown by appellant’s bills, was clearly admissible against both appellants to show motive. It has always been held by this court that such testimony was admissible for that purpose. White’s An. C. C. P. art. 796, §§ 1070, 1072, 1074, subd. “c.” Judge White collates many cases under these sections. See, also, Belcher v. State, 71 Tex. Cr. R. 653, 161 S. W. 459; Lane v. State, 73 Tex. Cr. R. 268, 164 S. W. 378.

It is also well established that it is neither necessary nor proper to limit testimony which goes to prove motive. 2 Branch’s An. P. O. § 1885, p. 1047„ where he collates some of the authorities.

It is also well established that every one who enters into a conspiracy to commit a crime before the ultimate object and purpose of it is completed is deemed a party to it from its inception, and that he adopts as his own all the preceding acts of the others, and that their declarations or statements made before he entered into it are admissible as against him, as well as those who originally entered into it, even though what was said or done by any of the others was done in his absence. The principles applicable to this question and the authorities of this state establishing them are so plainly and clearly laid down in 1 Branch’s An. P. 0. §§ 693, 694, that we deem it unnecessary to elaborate them. We have recently in some cases restated and applied these principles.

Mrs. Oorley was a witness for appellants, and from their standpoint gave material testimony in their favor substantially to the effect, in contradiction of some of the state’s testimony, that E. E. Sapp soon after he married Mrs. Sapp, who was killed, was very attentive to her, and she was very much attached to him and frequently stated to her and wrote her letters, all tending to show that the relations between E. E. Sapp and his said wife were cordial, affectionate, and that she had confidence in him, etc. Eor the purpose of impeaching her, the court permitted several witnesses to testify in substance that at the time Mrs. Sapp was lying a corpse soon after she was killed, Mrs. Oorley said: “Boor old thing, Sapp had you killed;” and that she said: “It is a cold-blooded murder, and Sapp ought to be arrested right now; that everybody knew Sapp married her for her money, and that was a poor way to get rid of her.” Clearly all this testimony by these several witnesses was inadmissible and has uniformly been held so by this court since the rendition of the opinion in Drake v. State, 29 Tex. App. 270, 15 S. W. 725. The state, if it could, would be permitted to impeach Mrs. Oorley by proving that she made declarations prior to her testimony herein different from what she made along the same line at any other time prior thereto, whether at the time Mrs. Sapp was lying a corpse or not, but the proof by the witnesses objected to should have been excluded. It was wholly inadmissible under the line of authorities stated.

Another of appellants’ bills shows that A. Hard, who was conductor on the Santa Fé train from Beaumont to Lumberton, testified in substance that persons answering the description of Lou Sapp and Dick Watts did not travel on his train from Beaumont to Lumber-ton on January 7th. The state, by its witness Jarvey, was permitted in impeachment of Hard, to prove that Hard at Cleveland in February or March told him that “there was not any doubt that the Sapps were guilty,” and that “there was not any doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton and became passengers in an automobile driven by E. E. Sapp.”" The first part of Jarvey’s testimony to the effect as just stated above that there was not any doubt but that the Sapps were guilty was also wholly inadmissible, and the court erred in admitting that part of Jarvey’s testimony. The other part just above stated, we think, was admissible; that is, that Hard on this occasion said to him there was no doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton, etc.

None of the testimony of the officers shown by appellants’ bill of exceptions No. 22 was admissible. The most that the state’s witness Mary Keith could have been asked on cross-examination by appellants’ attorneys was whether or not she was a common prostitute. This was asked her, and she denied she was. This concluded the inquiry into this subject, and none of the officers could testify that her reputation was that of a common prostitute; nor was any of the other testimony by these officers, as shown by this bill, admissible. McCray v. State, 38 Tex. Cr. R. 609, 44 S. W. 170, and other authorities cited in Wilson v. State, 71 Tex. Cr. R. 428, 160 S. W. 967.

In appellants’ bill No. 10 they complain of that paragraph of the court’s charge to the effect that appellants were indicted for the murder of Watts, and were on trial for that offense only, and they could not be convicted for the killing of Havard or Mrs. Sapp, but they could consider the evidence touching on the killing oí these parties, Havard and Mrs. Sapp, for the purpose of enabling them to pass on the question of whether, or not defendants, or either of them, killed Watts, and for no other purpose. Appellants’ objection to this charge was that the court ought to have told the jury that they could consider the testimony of the killing of Havard and Mrs. Sapp only for the purpose of showing motive on the part of defendants to kill Watts. As shown above, it would be improper for the court to charge on any testimony which would tend to show motive for the crime charged in this case. The idea of the court in giving that charge seemed to be to prevent the jury from convicting the appellants for killing Dick Watts, because they had killed Havard or Mrs. .Sapp. If appellants object to any such charge on another trial, the court should omit it. We cannot see how the jury could be misled to convict appellants for the killing of Havard or Mrs. Sapp on a trial under an indictment charging them with the killing of Watts only. If it becomes necessary to caution the jury on another trial, on this point then such charge should be so worded as not to tell the jury directly that appellants killed either Havard or Mrs. Sapp, but that if the testimony so shows or tends to show.

Appellants objected to another charge of the court, which in substance was that they could consider for noi other purpose than passing on the question of whether or not defendants, or either of them, killed Watts that testimony introduced with regard ■to the relationship of E. E. Sapp and his wife Ellen as to how they got along as man and wife after their marriage. This charge should be omitted on another trial.

It is always permissible for impeachment of an accused to show by him on cross-examination that he has been indicted or convicted of any felony, if not too remote, but it is not permissible to require an accused when testifying to show by him that he has committed any other offense, whether arrested on complaint therefor or not, if as. a matter of fact sufficient time has elapsed thereafter to show that the grand jury has had an opportunity to investigate and act upon it and have not found a bill of indictment. Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105. The court, therefore, committed an error in permitting the state to have Lou Sapp testify on cross-examination to the effect that he had before that killed a man in Louisiana, for which, it seems, he had not been indicted, and also by requiring E. E. Sapp to testify to shooting his brother-in-law, for which he had not been indicted, as shown by appellants’ bills Nos. ■41 and 42.

Complaint is also made by appellants of the charge in that in defining who are principals, the court in substance quoted that part of the statute to the effect that one is a principal who not being actually present keeps watch so as to prevent the interruption of those engaged in the commission of the offense. And also those are principals who endeavor at the time of the commission of the offense to secure the safety or concealment of the defendants. It seems the court merely in substance quoted the statute in these respects and did not submit any issue of that kind to the jury for a finding. However, only that part of the statute applicable should be stated in the charge, and that part of it relating to principals which is inapplicable should not be quoted. This, we think, would not have presented reversible error. But for the very purpose of preventing objections to the charge, such matters which are inapplicable should not be included therein.

We have carefully considered all of appellants’ assignments, but have deemed it unnecessary to take them up and discuss them separately. None of them present any reversible error, except as shown above. Some questions are assigned which doubtless will not arise on another trial. It is unnecessary to discuss them.

For the errors above pointed out, the judgment is reversed and the cause remanded.

On Motion to Revise and Reform Opinion.

Appellant has filed a motion asking the court to revise and reform its opinion herein. It is unnecessary to state the particulars thereof.

We think the appellants have misunderstood the opinion. In the first part of it we merely stated the theory of the state, so as to try to show the application of the questions determined and decided thereby — not that that theory is a fact. It may or may not be.

We think it cannot be gathered from the opinion that we held that the deceased Watts and Havard .were at first parties to the original conspiracy between E. E. Sapp and another at the time it was made, if it was. And certainly not that they were parties to any conspiracy to have themselves killed to prevent their testifying or otherwise as to their being hired to kill, and killing Mrs. E. E. Sapp. Nothing of the kind was meant or intended by the opinion. If they became parties thereto, it was when E. E. Sapp hired them, if he did, to kill Mrs. Sapp. The killing of Watts and Havard, or either of them, if by appellants, was a later incident to and made necessary in order to carry out, under the theory of the state, the original conspiracy entered between E. E. Sapp and another or others, which was, to the effect, as claimed by the state, that E. E. Sapp would marry a rich widow, manage to get her property by a will or otherwise, then make way with her by killing her, or otherwise, and divide the property acquired from her between the conspirators. Under the state’s theory, the original conspiracy has never yet been ended or consummated. It cannot, and will not, be until E. E. Sapp gets the balance of his wife’s estate under her will and divides it with his conspirator. It would not be essential to make Watts and Havard parties to said claimed original conspiracy, that they should get any specific portion of Mrs. Sapp’s property for killing her; the fact, if so, that they were hired by E. E. Sapp, and to be paid by him, to kill her, might be sufficient to make them parties thereto, to carry out one essential part — kill her.

Nor do we think it can be gathered from the opinion that ,we held that Lou Sapp was a party to said alleged original conspiracy before or at the time Mrs. Sapp was killed. His entry into the conspiracy, if he ever did, was at the time he assisted E. E. Sapp, if he did, in corralling Watts and Havard, taking them into the big thicket, and killing them, or helping E. E. Sapp to do so. The testimony might show that he did not know that Mrs. Sapp was to be or had been killed until some short time after she was killed, and perhaps prior to that time he did not even know that E. E. Sapp had married her. It may be that Lou Sapp was not to get any of Mrs. Sapp’s property, nor any special pay, or specific amount, for what he did, if anything, in the killing of Watts or Havard. However, according to the theory of the state, he became a party to the conspiracy by entering into an arrangement with his brother, E. E. Sapp, and aiding and assisting him, if he did, to kill Watts or Havard, and thereby enable E. E. Sapp to consummate his original conspiracy and succeed in ultimately getting his wife’s property and dividing it, and it was on this theory that the opinion ,was predicated.

We cannot understand how the opinion of this court can ever get to a jury. It is intended for the guidance of the judge in the trial, and should be for his guidance, so far as the questions decided are concerned. As stated in the original opinion, we have not discussed nor commented on the evidence. We have merely stated the different theories, where applicable. Of course, we understand that appellants deny any and all conspiracies at any and all times, and they deny the killing of Mrs. Sapp other than as an accident, and they deny that they killed either Watts or Havard at any time or for any purpose, but the state contends otherwise, and it is the duty of this court, so far, as it can, to decide the legal questions on the various contentions of the different parties, and this, and only this, is what we have undertaken to do.

As we understand, it has never been held and is not necessary that an admission or declaration of a coconspirator had to be communicated to the other conspirator against whom it is introduced before such admission or declaration would be admissible. The law is, as we understand it, that such declarations of a coconspirator are admissible against all parties to the conspiracy, .whether they heard it or it had been communicated to them or not.

The testimony of the various witnesses as to the declarations Watts and Havard made to them as they testified, which appellants objected to, shown by their bills, was held admissible on two grounds; one, particularly, to show motive by appellants for killing Watts; the other, as admissions or declarations as coconspirators to that part of the conspiracy, .if so, to the killing of Mrs. Sapp.

We refrain from discussing or even stating the testimony which would tend to show and authorize the jury to believe that both E. E. Sapp and Lou Sapp knew of the statements by Watts and Havard at different times that they or Watts had been hired by E. E. Sapp to kill Mrs. Sapp, etc. The many different times and places and circumstances where they are shown to have made such statements and the supervision and control of them by the Sapps about this time and shortly and immediately before Watts was killed seems to form a chain of circumstances that would authorize a jury to find they did know and had notice of the declarations by Watts and Havard, notwithstanding appellants both denied any such knowledge or notice. All that was for the jury. It is unnecessary for us at this time to say whether or not all this evidence was of sufficient force to establish their knowledge or notice, as claimed by the state. The jury must pass upon that question.

The opinion might not have made it clear that the theory of the state was that E. E. Sapp hired not only Watts but Havard too to kill Mrs. Sapp, although the shot that killed her was fired by Watts alone. We take ■it that the contention of the state was that both of these parties were hired by Sapp to kill her, and both of them as to killing her would have been principals. However, we do not state that that is a fact. We merely state what we understand the contention of the state to be. Of course, appellants deny all of this, and a jury may believe their side ultimately, and not that of the state.

We have thought it proper to thus explain, because of appellants’ motion. It is overruled. 
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      @=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     