
    HOWARD v. STATE.
    (No. 9807.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    1. Jury <&wkey;72(3).
    Act of deputy sheriff in summoning tales-men from railroad shops from list furnished him by foreman of shops held improper.
    2. Criminal law <&wkey;671.
    Bill complaining of court’s refusal to retire jury to take witness’ testimony held not to show error, where defendant and court knew what her testimony would be.
    3. Witnesses t&wkey;>l95 — Testimony of divorced wife that she saw stains which resembled blood on defendant’s shirt after homicide held not to violate statute (Code Cr. Proe. 1925, art. 714).
    Testimony of defendant’s divorced wife that she saw stains which resembled blood on his shirt after homicide held not to violate .Code Cr. Proe. 1925, art. 714, inhibiting husband and wife, though divorced, from being witnesses against each other concerning any communications between them while marriage relations existed.
    4. Witnesses «&wkey;195 — Testimony of divorced wife that she burnt defendant’s shirt on which she saw stains of blood after homicide held inadmissible (Code Cr. Proe. 1925, art. 714).
    Testimony of defendant’s divorced wife that she burnt his shirt on which she saw stains which resembled Mood after homicide held inadmissible, in view of Code Cr. Proe. 1925, art. 714, inhibiting husband and wife, though divorced, from being witnesses against each other concerning any communications between them while marriage relations existed.
    5. Criminal law <&wkey;4l9, 420(10) — Testimony that witness was told by others that a man had been at his place of business wanting a car, before deceased was hiredi to drive his car on trip on which he was murdered, held inadmissible as hearsay.
    In murder prosecution, testimony that witness was told by others that a man had been at his place of business wanting a car, before deceased was hired to drive his car on trip on which state contended that he was murdered, should have been excluded as hearsay.
    6. Criminal law <i&wkey;780(2).
    Refusal to charge that wife of witness, who was present with defendant when decedent was killed, was an accomplice, held not erroneous • under evidence.
    Commissioners’ Decision.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    P. W. Howard was convicted of murder, and lie appeals.
    Reversed and remanded.
    Harper & Howard, Wm. H. Eryer, and Moore & Smith, all of El Paso, 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 was convicted in the Thirty-Fourth district court of El Paso county for the offense of murder, and his punishment assessed at confinement in the penitentiary for life.

The record in this case shows without dispute that on or about the 19th day of September, 1920, the appellant, W. S. Ham, and' the deceased, N. C. Nixon, left the city of El Paso in a Ford touring car, and drove in the direction of Big Springs, by way of Sierra Blanca, Toyah, and Pecos City; that the automobile in question belonged to said Nixon, and that he was hired to drive same on the trip in question; that all three of said parties were seen together at Sierra Blanca, Toyah, and Pecos .City; that the appellant and said Ham were seen in Big Springs, in possession of said automobile, a few days after all of them had left El Paso, and without said Nixon were using and offering for sale said car. Outside of the testimony of said Ham, an accomplice, there was no testimony that Nixon was ever seen alive after all three of said parties were seen to leave Pecos City. About 2% months thereafter, deceased’s remains were discovered, partly buried, between Pecos City and Big Springs.

It was the contention of the state, and the accomplice, Ham, so testified, that after all three of said parties left Pecos, and while going in the direction of Big Springs, at the appellant’s suggestion, the deceased stopped the car, and appellant took a shovel and went some 200 or 300 yards, and began digging under the guise of prospecting for oil or minerals, and after he had dug a hole in the' ground sent Ham back to the car, with instructions to tell the deceased’to come out there, as he wanted to show him what he had found; and that, on the deceased’s approaching said hole, the appellant shot deceased twice with a pistol owned by said Ham, from the effects of which the deceased fell upon his hands, and, while begging appellant not to kill him, he was struck two heavy blows by appellant over the head with said shovel; that the appellant then buried the deceased in' said hole, and that he and Ham took possession of said ear and continued their trip to Big Springs, arriving there about 9 or 10 o’clock that night, where both of them remained at the Rose House till morning with their respective wives. It was also contended by the state, and evidence introduced in support thereof, that deceased was hired by the appellant in El Paso, to take him on a prospective mineral tour of about ten days, and that said Ham accompanied them back from El Paso on account of getting free transportation.

It was the contention of the appellant, and he so testified on his own behálf, that said Ham made the contract with the deceased for his car on the trip in question, and that he, the appellant, accompanied them from El Paso to Pecos for the purpose of observing the country and looking into the oil situation along the way, and especially at Pecos and in that vicinity; and that, after all three of them spent the night in Pecos; he, the appellant, did not continue the trip from that point towards Big Springs, but that said deceased and Ham left Pecos alone, in said car, and that he remained there to look into the oil situation, and took the train from Pecos to Big Springs, and arrived in Big Springs that evening about 7 o’clock, but did not go to the house where his wife and Mrs. Ham were staying until about 10 o’clock that night, and that he did not know that said Ham had come in until early next morning, when he arose and saw a car standing in front of the house, and upon examination recognized it as the same car in which they had all ridden from El Paso to Pecos, and which belonged to the deceased. This is a sufficient statement of the facts for the discussion of this opinion.

The appellant’s counsel have filed a very exhaustive brief, contending that the .trial court committed reversible errors, as set out and shown in their 19 bills of exceptions. We deem it unnecessary to enter into a detailed discussion of each bill on account of the number and length of same, and for brevity will group the bills and questions raised, where it is possible to do so. The disposition we have made of this case eliminates many questions raised by some of said bills, and which will not likely arise upon another trial, and for that yeason it becomes unnecessary to go into a minute discussion of many questions complained of.

In bill of exceptions No. 1 appellant complains of the action of the deputy sheriff in summoning talesmen from two railroad shops in El Paso and from a list furnished him by the foremen thereof, and the court’s refusal to sustain his motion to quash same. It is unnecessary for us at this time to discuss this bill fully, but we believe that it might be proper for us to state at this time that -this practice should not be commended, because, while in the instant ease the bill does not show injury, still such practice, if tolerated, could result in serious injury both to the state and appellant alike.

Bills 3, 4, and 5 complain of the action of the court in permitting the state, over the objection of the appellant, after his divorced wife testified that on the night of the day that the state contended that the homicide occurred, and while she and the appellant were living together as husband and wife, he (appellant) and said Ham returned to their homes in Big Springs, Tex., between 9 and 10 o’clock, to permit her to testify that she saw blood on his (appellant’s) shirt, and that she burned said shirt afterwards during the night. Appellant in this connection complains of the action of the court in refusing to retire the jury, and in not allowing the witness to relate the entire transaction in the absence of the jury for the purpose of his bill, and further complains that her testimony as to seeing the blood on the shirt and the burning of same was in violation of article 714, O. C. P., of the new statutes, and articles 794, 795, of the old statutes, inhibiting the husband and the wife, though divorced, from being witnesses against each other concerning any communications between them while the marriage relations existed. These bills, as presented, show no error in the ruling of the court in refusing to retire the jury in the instant case, because same show that the appellant knew, and so did the court, what her testimony would be, as same is set out in said bills. Her testimony that she saw stains which resembled blood on appellant’s shirt did not come within the inhibition of the law relative to communications made between the wife and husband during the marital relation ; but the testimony given by said witness to the effect that she burned said shirt was clearly inadmissible. If she burned same without the knowledge or connivance of appellant, he would not be bound thereby; and if she burned it at his request, or as a result of d private conversation between them, then we think it would come clearly within the articles above mentioned, and that the learned trial judge was in error in admitting said testimony, which will of necessity require a reversal of this case.

In bill of exceptions 16 complaint is made by appellant to the action of the court in permitting the witness Key, for the state, to testify over his objection that he was told by Williams, Dunne, and Mr. Dunne’s son, the three state’s witnesses, that a man had been at his place of business wanting a car,' and that he told him, if he would come back later, that he thought a man would be there who would make the trip for him, and that after Nixon, the deceased, and the men were gone, that he got in his ear and looked for them, because the man who hired Nixon claimed to be an oil man. This testimony was objected to as Being hearsay, and. we think the objection is well taken, and, in view of another trial, should be excluded, if it is objected to.

Bill of exceptions No. 18 complains of refusal of the court to instruct the jury that the wife of the witness Ham was an accomplice. There is no merit in this contention, and nothing in the record showing that said witness in any manner was in any way connected with the alleged homicide.

There are several bills complaining of the argument of the district attorney and other matters, but after a careful consideration of same we fail to find any error as herein presented.

Por the errors above mentioned, 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. 
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