
    MERCADO v. STATE.
    (No. 8019.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.)
    1. Homicide <®=>169(8) — Statements of deceased upon leaving home held admissible to show design or plan.
    In a prosecution for murder, testimony that deceased, upon leaving his home, had stated he was going to a certain place to see a brother of accused and to get from him a pistol, held properly received as showing design or plan.
    2. Criminal law <§=3419, 420(6) — Statement of deceased as to loaning of pistol to accused held inadmissible hearsay.
    Statements of deceased, when leaving home, that a brother of accused borrowed his pistol, held hearsay and not available to the state as proof of such borrowing.
    3. Homicide <⅞=>178(1) — Evidence connecting defendant’s brother with offense held admissible.
    Evidence of the measurement and description of footprints of defendant’s brother, who was also alleged to be implicated in the killing, and evidence that on the afternoon of his disappearance deceased was seen with defendant’s brother, held admissible.
    4. Homicide <§=I78( I) — Proof of movements of defendant’s brother sought to be implicated in conspiracy held admissible.
    In a prosecution for murder evidence that defendant’s brother was seen driving his automobile at night between the place of their residence and the place where the body of deceased was found held admissible, but not available as proof of defendant’s guilt, unless the jury believed that defendant and his brother or brothers had conspired to kill deceased.
    5. Homicide <§=>305 — -Instruction as to necessity for-proof- of conspiracy heid improperly denied.
    In a prosecution for murder, where the state sought to show a conspiracy between defendant and his brothers, denial of an instruction that the acts and declarations of defendant’s brothers ,could not be considered as evidence of his guilt unless the conspiracy was established held improper.
    6. Homicide <§=>305 — Instruction as to law of accessories and accomplices held improperly denied.
    In a prosecution for murder, where the state’s evidence tended to establish complicity of defendant’s brothers, an instruction that, if defendant was merely an accomplice or accessory he could not be convicted under an indictment charging him as a principal offender, held improperly denied.
    
      Appeal from Criminal District Court,. Cameron County; J. C. George, Special Judge.
    Higinio Mercado was convicted of murder, and lie appeals.
    Reversed and remanded.
    Wells & Galbraith, of Brownsville, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of ten years.

This is a companion case to that of Manuel Mercado, 258 S. W. 176, which has this day been decided. The evidence introduced on behalf of the state is practically the same as that developed in the separate trial of Manuel Mercado. In the present case, however, there was no direct testimony showing that the appellant was in company with the deceased at any time; nor is there evidence of flight on his part or of his possession of the pistol of the deceased. The facts present the theory of alibi which was submitted to the jury.

A charge was given upon the law of principals and circumstantial evidence. Evidence of flight of Manuel Mercado after his arrest and during that flight the pistol of the deceased and cartridges fitting it were thrown into the alley was introduced over appellant’s objection. This testimony was specifically withdrawn from the consideration of the jury by the court’s charge.

There was received in evidence over ■the objection of appellant testimony that the deceased had declared that he had loaned Manuel Mercado his pistol and that he was going to a certain place in the city of Brownsville to recover it. The statement of the deceased to his sister as he was in the act of starting away in her Ford car that he was going to the home of Tomayo and see Manuel Mercado was properly received, as showing the design or plan of the deceased. See Wigmore on Evidence, vol. 1, § 102; Porter v. State (on motion for rehearing) 86 Tex. Cr. R. 43, 215 S. W. 201.

The declaration of the deceased to his sister that Manuel Mercado had borrowed his pistol is regarded as hearsay, and was not available to the state to prove that Manuel Mercado had borrowed the pistol of the deceased.

The measurement and the description of the footprints of Manuel Mercado were properly received, as was likewise the evidence that, in the afternoon of the day on which the deceased disappeared, he and Manuel Mercado were seen together in a Ford oar.

The evidence that Jose Mercado was seen driving his car at nighttime at a point between Brownsville and the place where the body of the deceased was found was a fact which it was permissible for the state to put in evidence, but it was not one which could be used against the appellant to show his guilt unless, from the evidence in the case, the jury believed beyond a reasonable doubt that the appellant and his brother or brothers had entered into a conspiracy to kill the deceased and that he was present at the time, or that, being present, he aided or encouraged them to commit the homicide.

The appellant prepared a comprehensive special charge to the effect that the acts and declarations of his brothers could not be considered as evidence of his guilt unless there was a conspiracy shown. This principle not being embraced in the main chargé, the court shouid either have amended the charge or given the special charge requested in order to properly guide the jury and protect the rights of the appellant. Luttrell v. State, 31 Tex. Cr. R. 493, 21 S. W. 248; Graham v. State (Tex. Cr. App.) 61 S. W. 714; Wallace v. State, 46 Tex. Cr. R. 341, 81 S. W. 966; Chapman v. State, 45 Tex. Cr. R. 479, 76 S. W. 477; Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 948; Wilson v. State, 70 Tex. Cr. R. 3, 153 S. W. 243.

A special charge on the law of accessories and accomplices was requested and refused. If the appellant is tried again on similar evidence and the same request is made, such a charge should be given. If there be sufficient circumstances to establish the guilt of the appellant of complicity in the offense, they leave such doubt of the nature of his connection with it as would render appropriate the submission of that issue to the jury upon the demand of the accused. The jury should be told that, if the appellant was merely an accomplice or accessory, he could not be convicted under an indictment charging him as a principal offender.

The action of the court touching the examination of witnesses and reciting in the presence of the venire of an illustrative case on circumstantial evidence, and the result thereof, was in substance the same as that detailed in the companion ease of Manuel Mercado. These matters will not occur upon another trial. It is unnecessary to repeat the remarks made concerning them in the companion case mentioned.

Because of the errors pointed out, the judgment is reversed and the cause remanded. 
      
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