
    BOYD v. STATE.
    (No. 3689.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    On Motion for Rehearing, Dec. 1, 1915.)
    1. Criminal Law <@=982 — Suspended Sentence-Statute.
    Under the statute as to a suspended sentence expressly excepting murder from its provisions, the refusal to submit a plea for a suspended sentence was proper, where the court did net submit manslaughter, but submitted murder.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <@= 982.]
    2. Criminal Law <@=>376 — Evidence—Reputation — Suspended Sentence.
    Where the court declined to submit the issue of manslaughter, it was error to permit the state to attack defendant’s good character, which he had not placed before the jury, since it is only when the suspended sentence law applicable to manslaughter is an issue in the ease that the state can show defendant’s bad reputation as original testimony.
    LEd. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. <@=>376.]
    3. Homicide <@=>307 — Instructions — Negligent Homicide.
    In a prosecution for homicide, where the court submitted the state’s theory that defendant and his associates were to kill deceased, and there was evidence that they agreed to assault deceased with brickbats, with no purpose to kill him, but only to frighten him, although the wound inflicted caused his death, a charge on negligent homicide should have been given.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. <@=>307.]
    4. Homicide <§=3 — Assault — “Deadly Weapon.”
    In a prosecution for homicide the fact that the brickbat or whatever struck the deceased made an indentation and fractured the skull about the size of a quarter of a dollar, without showing its size or weight, did not show 'it to be necessarily a “deadly weapon,” and the fact that deceased died from the wound did not of itself prove that it was necessarily a “deadly weapon.”
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 5; Dec. Dig. <@=>3.
    Eor other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    5. Homicide <@=290 — Instructions — Means or Instrument Used.
    In a trial for murder, where the state’s theory was that defendant, with his two associates, were to waylay and kill deceased, .and where defendants’ theory and evidence was that they were to frighten him by throwing rocks, or in some way, without any purpose to kill him, and where it appeared that deceased was struck twice by a brickbat or something thrown, and that one missed him, an instruction under Pen. Code 1911, art. 1147, requiring consideration of the means or instruments used should have been given.
    [Ed. Note — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. <@=>290.]
    6. Criminal Law <@=419, 420 — Evidence — Hearsay.
    Where deceased could not speak English, and the witness testifying to his statement, admitted as a dying declaration, spoke both English and Mexican, and in the presence of the county attorney and other officers translated from Mexican into English what she said the deceased Mexican said, the officers not understanding what occurred, except as stated by the witness, who had not been sworn as an interpreter, her statements in the translation of deceased’s statement to the officers, and their testimony as to what she said, was inadmissible, since it was purely hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@=419, 420.]
    On Motion for Rehearing.
    7. Homicide <@=309 — Instructions — Manslaughter.
    In a trial for murder, where the theory of the state was that the defendant and his two associates agreed to waylay and kill deceased, and where defendants' theory and evidence was that they wore to waylay and frighten him by throwing rocks, or in some other way, without any purpose of killing him, an instruction on manslaughter was properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@= 309.]
    8. Criminal Law <@=419, 420 — Evidence— Hearsay.
    In a trial for murder, statements of Oklahoma officers to Texas officers who had gone to Oklahoma in search of defendant, who had gone to that state after the homicide, that defendant was going under a different name from his real name, made when defendant was not present and knew nothing of the statement, was hearsay and inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@= 419, 420.]
    9. Criminal Law <@=424^-Evidenoe — Statements oe Conspirators.
    In a trial for murder, testimony for the state of a party who had been with defendant at the time of the homicide, as to what the other party with them had told him as to who threw the rock which hit and wounded deceased, made out of the hearing of defendant and after the offense was alleged to have been committed, was inadmissible, since the conduct and statements of coconspirators after the completion of the conspiracy cannot be used against other parties thereto who were not present and did not hear it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. <@= 424.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Wood County; W. R. Heath, Judge.
    Cliff Boyd was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    W. W. Campbell, of Alba, and M. D. Car-lock, of Winnsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at five years’ confinement in the penitentiary.

The state’s theory of the case is practically made by the testimony of Gallagher. In substance, that witness testified: That he, defendant, and Farris were sitting in a restaurant in Alba, Wood county, when the deceased came in. The deceased carried a bundle showing he had made purchases which were in the sack. There are lignite coal mines in that immediate vicinity, and deceased was an employé of the mining company. The suggestion was made by one of the three that they waylay and frighten him by throwing rocks or in some other way, and Gallagher testified that one of them stated that they would brain him. This latter expression was supposed to mean that they would kill him. They further agreed among themselves that two of them would get in front of the Mexican and waylay him at some convenient point and chunk him. Gallagher was to follow behind and whistle so as to give the other two notice not to strike him, and segregate and identify himself from the Mexican so there would be no mistake in the man they struck or chased. That in pursuance to this agreement he followed the Mexican. On reaching a certain point he whistled, and the other two threw at the Mexican three times. The substance thrown at him struck him in the forehead and cracked the skull. The Mexican lived about 90 days and died. There were two operations performed on him and a piece of bone taken from the skull each time. There is evidence from Gallagher of an inferential nature tending to show the purpose was to kill. That was the state’s theory of the case. Quite a number of contradictory statements were introduced against Gallagher from almost immediately after the trouble, or very shortly thereafter, flatly contradictory of his testimony before the jury, which, if true, would show there was no purpose to kill. Gallagher turned state’s evidence under a contract with the state, for which he received manslaughter with suspended sentence. This was done, as shown by the testimony of the county attorney, or at least some'of the witnesses, because appellant filed a plea for suspended sentence. The case was dismissed against Gallagher with a view of his reindictment and a plea of guilty with suspended sentence.

The defendant’s theory of the case shows that there was no purpose of killing the Mexican, but it was only to frighten him. After they started on the expedition he and Farris went by a pile of bricks and broke some of them, and it would seem that the evidence indicates that it was with one of these pieces of brickbat that the Mexican was struck. The Mexican had on his head what is termed a miner’s lamp, which is intended to give'light in moving about in the mines or in the dark. Anyway, the Mexican had on the light, and one of the missiles seems to have been thrown at this light, and struck the Mexican just under or where it was. Appellant’s testimony is further to the effect that he did not understand the Mexican was to be killed, but was to be frightened and scared; in other words, his testimony excludes the idea of a homicide with intent. Upon that general proposition the state’s theory was that they had the ulterior purpose of killing, or by throwing the bricks' at the Mexican might result in his death, while that for the defendant was directly opposite, and there was no purpose or intent to kill. Appellant’s testimony is further to the effect that he did not participate in the throwing of the rocks or bricks, but after they started a friend of his by the name of Watson came along where he and Farris were and proposed they go to a picture show, and that he left and went to the picture show with Watson, and that the trouble all arose with the Mexican while he was absent at the picture show, and he had no connection with the immediate difficulty.

The defendant filed a plea for suspended sentence'. This was not submitted to the jury, because the court declined to submit the issue of manslaughter. The statute in reference to suspended sentence does not apply to murder; it being excepted out of the provisions of that law. Inasmuch as the court did not submit manslaughter, but submitted murder, there was no error in this ruling.

This brings up another question as shown by a bill of exceptions, to wit: That as original testimony the state introduced evidence attacking the reputation of appellant over his objection. This was admitted on the theory that he had filed a plea for suspended sentence. Inasmuch as the court declined to submit the issue of manslaughter, it was error to permit the state to attack appellant’s good reputation. He had not introduced any such evidence, and had not placed his reputation before the jury.- Had the court submitted the issue of suspended sentence, under the decisions of this court this would not have been error. It is only when the suspended sentence law is an issue in the case that the state is permitted to introduce the bad standing of the defendant as original testimony or before defendant places his reputation before the jury by facts or testimony.

The court’s charge is attacked because it failed to submit the issue of negligent homicide in the second degree. For cases cited and collated see Mr. Branch’s Criminal Law, § 500. A charge on negligent homicide should have been given. The court submitted the state’s theory of murder, and also gave a charge on aggravated assault in a general way. If appellant, Farris, and Gallagher agreed to assault the deceased with pieces Of brickbat, with no purpose to kill, but only to frighten, and the wound inflicted produced death without intention to hill, negligent homicide is in the case.

There is no positive evidence in the record that the weapon was a deadly weapon, and it is to be deduced from the fact that whatever struck the deceased Mexican on the head made an indentation and fractured the skull about the size of a silver quarter of a dollar, which was, it is claimed, the ultimate cause of death. It seems the only evidence indicating the instrument used which inflicted the wound was a piece of brickbat, the size of which is not given, nor is its weight mentioned. This is not necessarily a deadly weapon, and the fact that the Mexican died from the wound thus inflicted would not of itself prove it was necessarily a deadly weapon. It also seems from the testimony three missiles were thrown, one of which missed him, one struck him in the back, and the other on the head.

This served to emphasize the proposition that negligent homicide should have been given in charge to the jury. We are further of opinion that these facts also called for a charge under article 1147 of the Revised Penal Code of 1911. For authorities sustaining this proposition see Mr. Branch’s Criminal Law, § 434, and the numerous cases there collated. • If appellant was engaged in throwing rocks or pieces of brickbat at the Mexican with no purpose of killing, the jury should have been told that he might be, from that viewpoint of it, convicted of some degree of assault. Article 1147 and subsequent articles were not given in charge to the jury. The writer is of opinion that a charge on manslaughter should have been given under the facts, but my Brethren do not so believe. In addition, this record discloses that Parris was permitted to turn state’s evidence under a contract to plead guilty to manslaughter, which he did, and Gallagher, the other supposed or alleged conspirator, entered into contract with the state by which he was to plead guilty to manslaughter and obtain a suspended sentence, thus avoiding punishment. Had the killing not occurred, there could not have been a higher case than aggravated assault, and if there was no purpose to kill and no cruel circumstances attending the manner of killing, such as provided for in article 1149 of the Penal Code, the jury might have found appellant guilty of manslaughter, death having resulted.

There is another question presented. Shortly after, and within a couple of days after, the blow was inflicted, and nearly three months prior to the death of the Mexican, he made what is termed a dying declaration. The predicate for this was through the witness Mrs. Gonzales. She testified she was well acquainted with deceased, and that on the occasion in question he was sane, rational, and conscious of what was transpiring; that he believed, and so said, that he was going to die from such injuries inflicted upon him, and that he had no hope of recovery therefrom. It may be questionable whether this predicate is sufficient. Mr. Branch, in section 486, of his valuable work on Oriminal Law, states tersely this rule:

“State must show declarant was under the immediate apprehension of death, and it is not sufficient that the declarant believed he was going to die and would never get well, when the wounds were not necessarily fatal”—citing Edmondson v. State, 41 Tex. 500; Irby v. State, 25 Tex. App. 214, 7 S. W. 705.

Again he states:

“A sufficient predicate is not shown where the only statement of the deceased indicating approaching death was a statement that he believed he was fatally shot”—citing Craven v. State, 49 Tex. Cr. R. 81, 90 S. W. 311, 122 Am. St. Rep. 799.

Again he states the rule thus:

“Predicate is insufficient if proof fails to establish the fact that declarant at the time of making the declaration was conscious of approaching death and believed there was no hope of recovery”—citing Lebetter v. State, 23 Tex. App. 256, 5 S. W. 226; Phillips v. State, 50 Tex. Cr. R. 129, 94 S. W. 1051; Ex parte Meyers, 33 Tex. Cr. R. 204, 26 S. W. 196; Craven v. State, 49 Tex. Cr. R. 81, 90 S. W. 311, 122 Am. St. Rep. 799.

The predicate here referred to is found in two or three bills of exception, among others bill No. 5, in the qualification stated by the trial judge to said bill. If this is all the predicate, it may be seriously doubted whether or not the statement is sufficient, and the writer believes it was not. But the court overruled the objection, and permitted the testimony. Of course, Mrs. Gonzales could testify to the dying declaration if proper predicate had been laid.

The deceased Mexican could not speak English. Mrs. Gonzales spoke the Mexican and English languages. She testified on the trial, and, of course, her testimony would be admissible provided the proper predicate should be laid. When the dying declaration was made several of the officers—the county attorney and justice of the peace and some of the constabulary—were present. Mrs. Gonzales interpreted from the Spanish into the English language to them what she said the Mexican said, which is used as a dying declaration. These officers did not understand what occurred between them, except as stated by Mrs. Gonzales. She was not even sworn as an interpreter on the occasion. These officers were permitted to testify, and the state used their evidence as original testimony. Various objections were urged, which we think should have been sustained. Her interpretation of these statements of the deceased to the American officers was not admissible, nor was their testimony as to what she said admissible. It would be purely hearsay. They knew nothing that occurred, except the conversation in the Spanish language, which Mrs. Gonzales interpreted to them. This was hearsay.

There are other interesting questions in the case, but, for the reasons indicated, the judgment will be reversed, and the cause remanded. The other questions may not arise upon another trial.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

At a former day of this term the judgment herein was reversed. It was said in the opinion of the writer that manslaughter was in the case and should have been given in charge to the jury. The'majority of the court, however, did not agree to that. This is the principal basis of this motion for rehearing. In this respect the motion requests the majority of the court to agree with the writer and hold that manslaughter should be charged upon another trial.

Reviewing the record, the writer still adheres to his former belief that manslaughter was in the case and should have been given the jury, and upon another trial it should be so charged. I do not care to reiterate what I have said in the former opinion. The majority, however, adhere to their views. I cite in support of this Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; article 1148, Penal Code, 1911; Branch’s Crim. Law, § 504; Johnson v. State, 42 Tex. Cr. R. 371, 60 S. W. 48; Runnels v. State, 42 Tex. Cr. R. 555, 61 S. W. 479; Taylor v. State, 41 Tex. Cr. R. 151, 51 S. W. 1106; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195). Other cases might be cited, but these are sufficient.

Two other questions are suggested for decision which were not passed upon in the former opinion. The writer thought he had sufficiently passed upon these questions, in a general way, without specifying; they being hearsay statements made out of the presence of the defendant.

One presented the statements of officers of Oklahoma made to officers of Texas who had gone to the state in search of defendant, who it is shown had gone to Oklahoma after this tragedy. Those officers informed the Texas officers that defendant was going under a different name from his real name. Defendant was not present and knew nothing about it. We are of opinion this should not be introduced against the defendant.

Also, while Olaud Gallagher was on the stand testifying for the state, he was asked who it was Asa Earris told him (Gallagher) threw the rock and hit the Mexican, deceased, and wounded him in the forehead. Earris, Gallagher, and the defendant are the supposed participants in the wounding of the Mexican, which resulted in his death. This statement that Earris made to Gallagher was out of the hearing of the defendant and after the offense is alleged to have been committed, and should not be used against appellant. The acts and conduct and words and statements of coconspirators after the completion of the conspiracy cannot be used against the other parties to the transaction when they were not present and did not hear it. This is a well-settled rule, and is discussed extensively in Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746.

The original opinion not having dealt specifically with the latter two questions, and, appellant insisting upon their decision in order to avoid complications upon another trial, these matters are discussed. The trial court will understand that hearsay testimony is not admissible. We thought that the trial court would understand this from what was said in the original opinion about the hearsay testimony with reference to some of the other questions.

With these additions, the opinion as heretofore delivered will stand.

DAVIDSON, J., dissents. 
      
      =jE'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     