
    HENRY v. STATE.
    (No. 8812.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    State’s Rehearing Denied May 27, 1925.)
    1. Criminal law <&wkey;>l 111 (3) — Admission of testimony held not shown to be erroneous, in view of trial judge’s qualification of bill of exceptions.
    In view of trial judge’s qualification of bill of exceptions, by statement that witness, whose testimony is objected to by defendant, on ground that she was defendant’s common-law wife, and prohibited by Code Cr. Proe. 1911, art. 794, from giving evidence, had testified that she and defendant were not married, and had never held themselves out as married, which qualification having been accepted, is binding on appellate court, held that no error in admission of witness’ testimony was shown.
    2. Criminal law <&wkey;671— Admission of hearsay testimony as to‘what judge told witness in jury’s absence improper.
    In homicide prosecution, where jury was retired while judge was admonishing or advising a state’s witness, who was testifying as to confession made by defendant, thereafter permitting state to prove by hearsay testimony of deputy sheriff as to what judge told state’s witness in jury’s absence, was improper, as jury might have concluded therefrom that state’s witness must have spoken truthfully, in view of court’s admonitions and advice.
    3. Criminal law &wkey;>528 — Admission of declarations and acts of one alleged to have beep co-conspirator of defendant, made after termination of conspiracy, held error.
    In prosecution for murder, committed during burglary, admission of testimony that one alleged to have been coconspirator of defendant had taken witness to place where cocon-spirator had buried some money, and that money was found at such place, defendant not being, present, and not shown-to have any knowledge thereof, held erroi^, as such declarations were not within Code Cr. Proc. 1911, art. 810, and conceding that defendant and such other were coconspirators, the conspiracy had terminated at the time.
    4. Criminal law <&wkey;424(3) — Coconspirator’s declarations, made after termination of conspiracy, not admissible against defendant.
    Proof of acts or declarations of coeonspirator, done or made in absence of defendant, after commission of offense and termination of conspiracy, is not admissible against defendant.
    5. Criminal law &wkey;s428 — That coconspirator found in possession of fruits of crime, after termination of conspiracy, cannot be shown by testimony of others as to declarations of coconspirator.
    Though it may be shown by proper evidence, after termination of conspiracy, that a coconspirator was found in possession of fruits of crime or weapon with which it was committed, it cannot be shown by testimony of others as to acts or declarations of coconspirator.
    6. Homicide <&wkey;>235 — Evidence held not to sustain conviction.
    In prosecution for murder, committed during burglary, evidence held not to sustain conviction.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    John Henry was convicted "of murder, and appeals.
    Reversed and remanded..
    Richard G. Waters, of New Boston, and W. W. Arnold, of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Defendant is under conviction for the murder of Asbury Whitten, with the punishment assessed at death.

The brothers of deceased owned a store, in -which deceased worked, and where he slept. He was last seen alive about 9 o’clock at night. The next morning his body was found at the back door of the store, with the head almost completely severed. Two cuts were in the head, apparently having been made with an ax. Other facts sufficiently appear in connection with the questions of law discussed.

Defendant' complained because Doll Washington was permitted to testify against him; it being urged that the testimony showed she was defendant’s common-law wife, and, as such, was prohibited from giving evidence by article 794, C. C. P. The bill is qualified by a statement of the learned trial judge that, while the witness testified, as shown by the bill, as to her relations with defendant, that she also swore they “had lived and slept together for a number of years; that they were not married, and had never held themselves out as married. Her testimony showed only that she and defendant had been living together in adultery.” The bill, having been accepted with this qualification, is binding on us. It shows no error. Mann v. State, 44 Tex. 642; Sims v. State, 30 Tex. App. 605, 18 S. W. 410.

The matter complained of in bill No. 3 cannot be well understood without a statement of what preceded. Doll Washington and defendant had been living'together for five or six years. She was placed on the stand by the state and testified that, on the night of the homicide, defendant went to bed soon after supper, but got up in about an hour, put on his clothes, and left the house; that he declined to tell her where he was going, only saying he had some business to attend to; that, when he came back, he told her he had helped to kill deceased; that he did it to get some money; that Houston Shaw got the money while defendant killed deceased with an ax; that he had buried the'money in a haystack and thrown the ax in an old well. On cross-examination she admitted that, when first brought before the grand jury, she swore defendant did not leave the house the night of the murder. Upon being asked about changing her testimony the second time she was before the grand jury, witness said:

“They got after me, and told me they would kill me, or keep me in jail a year.”

It also developed that the attorneys for defendant, in company with an officer, talked to the witness in jail the night before the trial. She inquired if they were defendant’s attorneys. They declined to tell her, but told her they only wanted the truth of the matter. She admitted, while testifying in the case, that she told the attorneys in the presence of the officer that defendant had not left the house the night deceased was killed, and that what she told to the contrary was a lie, and said she told 'the lie because “those people scared me to death.” The next morning, however, she asserted that what she told the attorneys the night before was a lie. She swore no officers had threatened her, but that some ■ prisoner in jail had made the throats. At this point the learned trial judge had the jury retired, and in their absence held some converse with the witness, which will appear later. When the jury was brought in, she again repeated the confessions claimed to have been made to her by defendant. The next day the state, over objection, was permitted to prove by a deputy sheriff that he was present the day before and heard the judge in the jury’s absence tell the witness (Doll Washington) the following:

“All we wanted was for her to tell the truth,the whole truth, and nothing but the truth, and wouldn’t anybody hurt her for telling the truth, and that was all he wanted. He told her she would be protected. He said this was a court of justice, regardless of whoever it was in favor of or against, and he said for her to go ahead and tell the truth and she would be protected, and insisted for her to tell the truth, regardless of what it was, and assured her that she would be protected and no harm done to her, and she said that she would tell the truth, and, when the jury came back, she told the same story I first heard her tell.”

The evidence of the officer, stating what the court had told the witness in the jury’s absence, was objected to as hearsay, and that the purpose and effect of it was to support in an improper way the testimony of Doll Washington against defendant. The matter arose in a most unusual manner. There was no objection to what the court said to the witness in the jury’s absence, and indeed it seems none could have been reasonably urged. The court doubtless realized that this defendant’s life depended on the testimony of this particular witness, for upon her ,alone the state depended to connect him' with the killing. The court thought it proper to retire the jury while he admonished or advised the witness, and we are in entire accord with him that far; but we are unable to understand on what principle he later let a. witness by hearsay testimony advise the jury of the very matters he had withheld from them. In view of the many contradictions and conflicts in the testimony of Doll Washington (all of which have not been mentioned), the jury may have used the testimony complained of to defendant’s injury. It could have been appropriated to support her, on the theory that after being admonished by the court to speak the truth and she would réceive protection she had reasserted the criminative facts against accused, and therefore she must have spoken truly in view of the court’s assurance. This is to be understood as having application only under the peculiar circumstances of this particular case, having reference to the manner in which the question entered the record.

Complaint is made of the admission of certain evidence through the witness Tom Lennox. He testified that he talked to Houston Shaw and Dollie Washington while they were in jail. He was asked if any one made a declaration to him, but was not permitted to answer this question. However, he did testify over objection that he, together with others, took Shaw out of jail and went with him to a certain point where they left their cars, and that Shaw carried them to the place where he (Shaw) said the money was buried; that they found the money in a sack inside a tin can. Witness was shown and identified the sack. The testimony was objected to on the ground that neither the acts nor declarations of Shaw were admissible against defendant. The latter was not present, and is not shown to have had any knowledge of Shaw’s statements or acts. It will be recalled that Doll Washington claimed that defendant had told her the money was buried in a haystack. If any money was ever found in a haystack, the record fails to show it. The money found by Lennox on the trip with Shaw was at an entirely different place than that described by defendant, and was not discovered as a result of any statement made by the latter; hence it does not come within the provision of that part of article 8X0, C. C. P., admitting confessions when in connection therewith statements are made which are found to be true and' which conduce to establish the guilt of the party making them. If the property found came out of the Whitten store, the transaction testified about by Lennox would be admissible against Shaw, if he were on trial, but was it admissible under the circumstances against defendant? We think not. If it be conceded that defendant and Shaw were cocon-spirators in the murder to effect burglary or theft, the conspiracy had terminated.

The general rule is that proof of the acts or declarations of a coconspirator, done or made in the absence of the defendant on trial after the commission of the offense, and after the conspiracy is terminated, is not admissible against such defendant. See cases collated under section 695, p. 354, Branch’s Ann. Tex. P. C. It is patent from the record that the trip resulting in finding the buried money was brought about by information given by Shaw. The latter pointed out the place where “he said the money was buried.” Couch v. State, 58 Tex. Cr. R. 505, 126 S. W. 866; Overstreet v. State, 67 Tex. Cr. R. 565, 150 S. W. 630, are direct authority against the admission of the testimony complained of. They are approved in Garcia v. State, 88 Tex. Cr. R. 605, 228 S. W. 938. The case of Funk v. State, 84 Tex. Cr. R. 402, 208 S. W. 509, as explained in Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739, is not in conflict with this holding.

It is well established that, after a conspiracy is ended, it may be shown by proper evidence that a coconspirator, or code-fendant, was found in possession of the fruits of the crime, or the weapon with which it was committed, but it is not permissible to show this by testimony of others as to the acts or declarations of the co-conspirator, or codefendant. The principle is illustrated by many cases collated under section 695, par. 3, Branch’s Ann. Tex. P. C.

The facts are unsatisfactory to support a verdict carrying the extreme penalty. None of the stolen money was found in defendant’s possession. None was found buried under any haystack where he is said to have placed it. No ax was found in an old well where he is said to have thrown it. The state’s case hinges almost wholly upon the contradictory statements of defendant’s paramour.

For the reasons heretofore given, the judgment is reversed, and the cause remanded. 
      
      
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