
    CAMMACK v. STATE.
    (No. 9601.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1.Homicide <§u»I69(7) — Evidence of conversation showing intent of accused prior to crime held admissible.
    In a prosecution for murder, testimony by sister of accused and by accused as to conversations between codefendant, his wife, and accused prior to commission of crime was admissible for purpose of showing innocent intentions of accused
    2. Criminal law <&wkey;683(l) — Testimony showing intent of accused prior to crime held admissible to rebut conspiracy.
    In a prosecution for murder, testimony by sister of accused and by accused as to conversations between codefendant, his 'wife, and accused prior to commission of crime was admissible for purpose of rebutting state’s theory of conspiracy.
    3. Homicide &wkey;G74(I) — Evidence of payment of telephone charges held irrelevant.
    Testimony by wife of deceased, showing wife had paid telephone-charges for conversation between accused and counsel, held irrelevant and immaterial.
    4. Criminal law <&wkey;>448(3) — Evidence as to purpose of presence of codefendant at homicide properly excluded as opinion.
    Testimony by wife of codefendant to show reason and purpose of codefendant in going to place of homicide was properly excluded as opinion evidence calling for a conclusion.
    5. Criminal law <§^>770(2) — Failure to charge converse of law of principals held error.
    Fáilure to charge the converse of law of principals in prosecution for murder held error.
    6. Criminal law <&wkey;>772(6) — Failure to charge affirmatively- the defense of accused held error.
    In prosecution for murder, when demanded by accused, the failure to charge affirmatively the defense of accused was error.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    L. D. Cammack was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Sanders & Sanders and Davis & Davis, all of Center, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant and Calvin Boles, Elbert Boles, and Claude Boles were charged jointly by indictment with the -offense of murdering W. R. Cook, by shooting him with a gun, and, upon a severance being granted, the appellant was cofivicted in the district court of Shelby county of the offense of manslaughter, and his punishment assessed at two years in the penitentiary.

It was the contention of the state that the defendants in the indictment had entered into an agreement and understanding for the appellant to go to the store of the deceased and call him out, and that the other defendants named in ‘the indictment were to assemble, and that they would kill the deceased under the pretext of insulting conduct of the deceased towards the wife of Calvin Boles, the sister of the appellant in this case, and that appellant was engaged with the other ■defendants fighting deceased when he was killed by Calvin Boles.

It was the contention of the appellant that Calvin Boles and his wife, the appellant’s sister, and himself had a conversation on Sunday evening prior to the homicide on the following Tuesday morning, in which the said Boles- and his said wife had requested the appellant to see the deceased and inform him of some rumors and disgraceful talk about the wife of the said Boles and the deceased, and to request the deceased to desist from visiting the house and premises of said Calvin Boles in his absence, and that his approaching the deceased and calling him out was only for the purpose of talking to him relative to said matters; that he believed in the innocence of his sister, and was on the friendliest terms with the deceased, and had no knowledge that there was any intention of any'of the defendants to kill or injure the deceased until after the shooting, when he heard Calvin Boles inform the deceased’s wife that he killed the deceased because he (the deceased) had ruined his home.

There are many objections raised, to the court’s charge, and bills of exceptions taken in the trial to the admission or rejection of testimony, but we deem it necessary to discuss only such questions raised by the record which we think show error in the trial, and which are likely to arise upon another trial herein.

The appellant by proper hills of exceptions complains of the action of the trial court in not permitting him to show by his sister, Miss Mary Cammack, and in not permitting him to testify to the conversations on Sunday evening prior to the homicide on the following Tuesday morning, between Calvin Boles, his wife, and himself, relative to the gossip in the neighborhood concerning the deceased and said Mrs. Calvin Boles, and the entire conversation concerning said matters. We think this testimony and conversations pertaining thereto at said time were admissible in behalf of the appellant, for the purpose of showing his innocent intentions and in seeking to have a friendly conversation with said deceased, and were also admissible to rebut the theory and contention of the state .that the appellant was in a conspiracy with the other defendants to take the life of the deceased, and that his presence and actions at the scene of the homicide were a part thereof.

We also think the court erred in permitting the wife of the deceased to testify, over the objection of the appellant, that the telephone conversation between the appellant and Attorney Sanders, at Center, was charged to her and she had paid it, and no one had ever paid her back said telephone dues. We think th& evidence as to her paying the said dues and no one having ever reimbursed her therefor is wholly irrelevant and immaterial to any issue in the case.

Complaint is made,to the action of the court in refusing to permit the appellant to show, by the wife-of Claude Boles, the reason and purpose of her husband in going to Choice, the place of the homicide, on the morning of its occurrence. There is no merit in this contention, as it is plainly shown from the bill that said proposed testimony, if admitted, would only involve an opinion and conclusions of said witness, and in no way binding on the state.

Appellant further complains of the charge of the court in not charging the converse of the law of principals and his presence at the scene of the homicide, and in effect a failure to charge the jury that, although the appellant was at the place of the homicide, if he did not know of the intentions of any of his codefendants to kill the deceased or to inflict upon him, serious bodily injury, and his purpose was only for the purpose of having a friendly talk with the said deceased with reference to the rumors and reports against him and his sister, or if they had a reasonable doubt thereof, to acquit him. We think that the appellant’s contention and criticism to the charge of the court is well founded in this particular, and that the court should have charged the jury the converse of the law of principals, and charged in an affirmative way the appellant’s defense, which was clearly raised by his own testimony to the effect that his only purpose was to see and talk to the deceased and to request him to desist from visiting the premises of Calvin Boles in his absence, and was trying to separate them at the time of the homicide, or, if they had a reasonable doubt thereof, to acquit him.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so. ordered.

PER CURIAM.

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. 
      &wkey;?For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     