
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    1. Criminal Law (§ 423) — Evidence—Acts of Conspirators.
    Where, in a prosecution for assault to kill, the state claimed a conspiracy between defendant and three others to kill deceased, evidence ot all facts and circumstances in furtherance of the design by each of the parties was admissible, though all of them may not have been present at the time the assault occurred.
    [Ed. Note. — For other cases, see Criminal Law,, Cent. Dig. §§ 989-1001; Dec. Dig. § 423.]
    2.Criminal Law (§ 673) — Evidence—Limitation — Motive.
    Where, in a prosecution for assault to kill, the state claimed a conspiracy between defendant and three others to kill deceased, and evidence of a prior difficulty in which prosecutor had whipped one of the conspirators was properly admitted to show motive, the court did not err in omitting to limit such evidence, since it is only when extraneous matter is not admissible on the main issue that the court should limit the effect thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    3. Criminal Law (§ 139) — 'Venue—Change of Venue — Joint Defendants.
    Where persons were jointly indicted and a severance was ordered after which a change of venue was applied for, it was not error to change the venue as to different defendants to different counties.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 256; Dec. Dig. § 139.]
    4. Criminal Law (§ 396) — Evidence—Entire Conversation.
    Where, in a prosecution for assault to kill, defendant proved by a witness that his son admitted to him that he shot deceased, it was not error to permit a witness to state all that was said as to the same matter in the same conversation, under Code Or. Proc. 1911, art. 811, providing that, when part of a conversation is introduced in evidence by one party, the whole conversation, in so far as it relates to the same matter, may be inquired into iby the opposite party.
    [Ed. Note. — FOr other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    5.Witnesses (§ 414) — Corroboration—Evidence — Relevancy.
    Where, in a prosecution for assault to kill, the state claimed that defendant and others with him stopped at a certain place, and waylaid prosecutor as he came 'by, evidence of the finding of prosecutor’s hat near the place and as to the finding of tracks there was admissible to corroborate his testimony that he had been jerked into the buggy of defendants, held down, and shot, at which time he lost his hat.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    6.Homicide (§ 310) — Assault to Murder-Instructions.
    Where, in a prosecution for assault to kill, it appeared that defendant and two others conspired to give the prosecutor a whipping, but that they went unarmed, and were joined by another who shot prosecutor without defendant’s knowledge or consent, and not in furtherance of any design to which defendant was a party, defendant was entitled to an instruction that if defendant conspired only to assault prosecutor, and he was shot by another without defendant’s connivance or consent, defendant would be guilty of no greater offense than that within the original contemplation of the parties.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    7.Criminal Law (§ 779) — Trial—Defenses —Admission.
    Where, in a prosecution for assault to murder, defendant’s theory and testimony was that there was no conspiracy to kill deceased, but only an intent to require him to make a satisfactory explanation of insulting remarks concerning a female or suffer a whipping, it was error to refuse to charge that, unless the jury found that a conspiracy existed to take the life of prosecutor, they should not consider, as evidence against the defendant, the acts and conduct of the person who in fact shot him.
    [Ed. Note.—For other cases, see Criminal , Law, Cent. Dig. § 185S; Dec. Dig. § 779.]
    Appeal from District Court, Ochiltree County; F. P. Greever, Judge.
    Bob Wilson was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    R. T. Correll, of Ochiltree, and Willis & Willis, of Canadian, 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
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence would show that Jeff Wilson and Dorsey Jones had a fight, in which Jeff Wilson was apparently given a whipping. The state’s theory of the case is that on account of this whipping Jeff, Andrew, and Boh Wilson and Joe Allen entered into a conspiracy to kill Dorsey Jones, and in pursuance of that conspiracy one of them did shoot him, all the others being present, and we might add here that the evidence offered in behalf of the state would support the verdict. There was a severance, and appellant alone tried. He admits that he and his brothers Jeff and Andrew went to see Jones, but says that Joe Allen and Jeff Wilson reported to Andrew (W-ilson that Jones had made very insulting remarks about his (Andrew’s) stepdaughter; that Andrew stated that he was going to see Jones about the matter, and requested appellant to go with him; that Jeff Wilson also went along in the buggy, as he had reported to Andrew the remarks imputed to Jones. Appellant says Joe Allen did not go with them, and they did not know of his intended presence at this place. Appellant further testifies that he nor either of his brothers were armed; that the shot was fired by Joe Allen without their knowledge or consent. The state’s evidence would, however, authorizei the jury to find that it was Jeff Wilson who shot Jones. Tha evidence for the state and defendant both would show that when Andrew Wilson assaulted Jones (whether done under the circumstances as claimed by the state or as claimed by defendant) that appellant exclaimed, “Wait a minute, let’s hear his (Jones’) plea.”

The court admitted in evidence the acts, words, and conduct of Joe Allen and others indicted from and after the time of the fight between Jeff Wilson and Jones until the shooting took place. As the state’s theory was that a conspiracy was entered into by and between the four persons to kill Jones, the court did not err in admitting in evidence all facts and circumstances in furtherance of this design by each of the parties, even though all of them may not have been present when each remark was made. It has always been held by this court that what is said and done by any of the conspirators pending the conspiracy and in furtherance of the common design is admissible against the one on trial, though said and done in his absence. Gracy v. State, 57 Tex. Cr. R. 68, 121 S. W. 705. Therefore none of the bills of exception to the admissibility of this testimony presents any error.

Appellant contends, however, if the testimony that a fight had occurred and the other circumstances were admissible, then the court ought to have limited same in his charge, and cites us to the case of Maines v. State, 23 Tex. App. 568, 5 S. W. 123, wherein it is held “that whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly to prove the main issue, and which might tend, if not explained, to exercise a strong, undue or improper influence upon the jury as to the main issue, injurious and prejudicial to the party, then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results cannot ensue.” This is a correct rule of law, but it will be noticed that it is only when it is not directly admissible to prove the main issue that it is necessary to limit it. The fight and the whipping given Jeff Wilson by Jones was admissible to show the motive of the parties, and evidence which goes to show motive goes to prove the main ease, and is never an incidental matter. Therefore it was not necessary for the court to limit this testimony, and he did not err in refusing the special charges on this phase of the case.

Allen and the three Wilsons were jointly indicted; the ease against Allen was dismissed, and the three Wilsons severed. A change of venue- was sought, and by agreement Andrew Wilson’s case was sent to Oar-son county, and the venue of the case against the other two defendants was changed to Ochiltree county. After severance there was no error changing the venue to different counties, and especially is this true where it was done with the consent of the defendants.

When the defendant proved by Mr. L. A. Allen that his son Joe had stated to him that he shot Jones, it was not error to permit Mr. Allen to state all that was said that related to that matter in the same conversation. Article 811, Code Or. Proc. 1911, provides that, when part of a conversation- is introduced in evidence by one party, the whole of the conversation in so far as it relates to the same matter may be inquired into by the opposite party. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

The testimony of Sam Hunter was also admissible as tending to support the testimony of Dorsey Jones that he had been jerked in the buggy, held down, and shot, at which time he lost his hat. The finding of this hat at the place it was found would tend to show this to be true, and certainly his testimony as to the tracks, etc., he says he saw at the point Jones was shot would be admissible on the theory of the state that the parties had stopped there to waylay Jones as he came by.

Several questions are raised by appellant in the record which, in our opinion, present reversible error. As hereinbefore stated, the state’s evidence amply supports the verdict that appellant was guilty of assault with intent to murder. However, the' evidence all clearly shows that appellant did not do the shooting; .that when Andrew Wilson grabbed Jones and pulled him in the buggy, as contended by the state, or when Jones pulled his knife and started towards Jeff, and Andrew struck him, this defendant said, “Wait a minute, let’s hear his (Jones’) plea,” when the circumstances show that either Jeff Wilson or Joe Allen fired the shot, and that only one shot was fired. If it be conceded that the evidence conclusively shows that the three Wilsons conspired to go down there and whip Jones, if they were unarmed, still appellant’s testimony raised the issue that Joe Allen was not a party to the conspiracy, and that Joe Allen was the person who fired the shot without his knowledge or consent, and not in furtherance of any design to which he was a party. Appellant presented several special charges on this theory of the case, all of which were refused, and we are of the opinion that the evidence is such that this issue should have been aptly presented to the .jury.

Again, appellant contends that if it be conceded that the three Wilsons entered into a conspiracy to seek Dorsey Jones and demand an explanation, and, if not satisfactory, to whip him, then in that event, if his brother Jeff Wilson went further than the conspiracy originally contemplated and shot Jones without his connivance or consent, he would be guilty of no graver offense than that within the original contemplation of the parties, and his contention is that, at the time of and just before the shooting, according to the testimony of both the state and defendant, instead of aiding and abetting the person shooting, he was seeking to prevent trouble by requesting all parties to wait and give Jones a chance to explain. In a number of cases this court has held that if no more than a misdemeanor was contemplated in the original design, and one of the parties killed the deceased, which act was not in contemplation of the original design, those not participating in the graver offense would only be guilty of a misdemeanor, or the offense within their intent, and error to fail to submit this theory to the jury when raised by the testimony. Goodwin v. State, 58 Tex. Cr. R. 496, 126 S. W. 585; Cecil v. State, 44 Tex. Cr. R. 454, 72 S. W. 197; Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093; Blain v. State, 30 Tex. App. 706, 18 S. W. 862; Stevenson v. State, 17 Tex. App. 636. Appellant by his testimony raises the issue that the shooting of Jones, if a conspiracy should be found to have existed, was not within the terms of such conspiracy, and the shooting was done upon an independent impulse of Joe Allen or his brother Jeff Wilson, and, if so, appellant would not be guilty of any greater, offense than aggravated assault.

Also, appellant requested the court to instruct th¡5 jury, unless they found that a conspiracy existed to take the life of Jones, not to consider as evidence against him the acts and conduct of Joe Allen. We are of the opinion that this charge should have been given. While the testimony was admissible under the theory of the state, which had support in the testimony, yet under appellant’s contention no conspiracy existed and he had the right to have his theory also presented to the jury.

Other matters are complained of in the motion, but the rulings herein made will be sufficient to indicate to the court the proper action in the premises on another trial, and we deem it unnecessary to discuss them.

The judgment is reversed, and the cause is remanded.  