
    Dan Cline v. The State.
    
      No. 416.
    
    
      Decided June 16.
    
    1. Murder — Conspiracy—Evidence of Preparation and Threats by One Conspirator. — On atrial for murder where three parties, one of whom was the defendant, were acting together at the time of the killing, and it was objected to evidence of preparation and threats by one of the others not on trial, because a prima facie case of conspiracy had not been established, Held, that the evidence was admissible to show that the party making such preparation and threats was the aggressor, and that the others were present, and, knowing that he was the aggressor, engaged and took part with him in the killing.
    2. Same — Impeachment of Witness by His Contradictory Statements— Charge as to. — On a trial for murder, where the testimony of a witness taken at the examining trial was introduced to impeach his evidence as a witness on the trial, and the court instructed the jury, in effect, that such testimony was admitted not for the purpose of proving that what the witness swears to on the trial is untrue, but to show his unworthiness of belief, Held, erroneous. Where a witness makes contradictory statements under oath as to important facts, a jury would be justified in considering his testimony given on the trial as absolutely false, and in entirely rejecting the same, because not probably true. Following Howard v. The State, 25 Texas Crim. App., 686.
    Appeal from the District Court of Gonzales. Tried below before Hon. T. H. Spooner.
    This appeal is from a conviction for murder of the second degree, the punishment assessed being ten years’ imprisonment in the penitentiary.
    In conformity with instructions from the presiding judge in his opinion below, we give the facts in full, as follows:
    ■ Dave Cunningham, sworn for the State, says: “I know the defendant, Dan Cline, and see him-in court. I knew Spencer Cunningham. He was my brother. He is dead. He was killed in Gonzales County, Texas, on the night of July 28, 1893. On the night before the killing, deceased and myself were attending church at the Arbor. While there we had a difficulty with the Cline boys. Some time before this Tom Cline, brother of defendant, and myself had traded coats, and on that night at the Arbor Tom Cline told me he wanted his coat back. I refused to let him have it. Defendant and Marshall and Abe Cline, liis brothers, were there and present. My brother Spencer was also present. Tom Cline said to me if I would go out in the brush he would get his coat or get me; and Abe, his brother, spoke, and said: ‘Yes, by God, I would have my property wherever I found it, or go to hell trying.’ Marshall was present all the time. I left them, and went back under the arbor, and remained there until church was over. Marshall Cline had a Winchester in his hands while the conversation was going on. After church we all went home. Work Stewart had a gun. He was with me, my brother, and others. I don’t know who went after Work’s gun, but when we got ready to leave Work went out to the brush and got a gun. I did not have the gun. As we were going home we stopped on the road to wait for some one. Don’t know now who it was, but remained there some little time. While we were waiting, Marshall Cline, Tom Cline, and defendant Dan Cline all passed by us, going home. There was nothing said by us nor them. Marshall had his Winchester. After waiting sometime we started home, and passed by defendant’s house. We. were traveling the public road. As we passed defendant’s house, Marshall, Tom, and defendant were out at the fence, one with a Winchester — which was Marshall — and one had a pistol in his hand. We passed on, and nothing was said by any one. Before we got home Work Stewart shot at a rabbit which ran across the road. Don’t know what his gun was loaded with. We went home, and next morning Spencer Cunningham, the deceased, and myself went to the town of Waelder to see the officers, and saw Mr. Jim Taylor, the constable, and Mr. Wyatt, the deputy sheriff. We then went back home, and that night we started to Wesley chapel to an exhibition. Did not go to church at the Arbor on account of the Cline boys. Thought they would be there. We started from home iu a buggy, driving a horse and mule. Steve Wilson started in the buggy with us. We had to pass by the Arbor in going to Wesley chapel, and before we got to the Arbor Steve Wilson got out to go with some woman. We drove on, and when we got within half a mile or less of the Arbor we saw Marshall Cline and Tom Cline on the same horse on the side of the road, talking to Walter Winkfield. We drove on by them, and had gone only a short distance until Marshall Cline and Tom Cline came loping by us, going to the Arbor. We drove on by the Arbor, within about fifty yards of the Arbor, and as we got about seventy-five or a hundred yards from the Arbor, traveling the public road on our way to Wesley chapel, the first I knew of the presence of either of the Cline boys was Marshall stopping our horses. He was in front of the horses. I then saw Tom Cline to the right, and Dan Cline, the defendant, to the left. All of them were in the road when Marshall caught hold of the bridle to stop the buggy. He said, ‘Boys P and raised his Winchester at that time. I started to rise with my gun, and Marshall shot me, and I fell forward over the dashboard. I raised my gun to shoot, and don’t really know if I did, but think I did shoot, but did not take a good aim. As soon as I fell I got up, and ran up the road the way we had come, and looked back, and saw all of the defendants shooting. Could see the flashes from each one. It seemed to me there were between twelve and twenty shots fired. Spencer jumped out of the buggy and started to run in the brush, which was the last time I saw him until after he was dead. He was shot in the left side. Don’t remember where else he was shot. His body was found-in the brush within a few steps of the public road, and where the shooting occurred. I was shot in the chin; my teeth were knocked out. The first one of the defendants I saw was Marshall, who was in or near the middle of the road, in front of the horses. I then saw Tom and Dan. Did not notice them as close as I did Marshall. I did not see any gun in the hands of Tom or Dan, and did not know they had any until after the shooting commenced. It was done very quickly. I had a single-barrel shotgun, and Spencer had a double-barrel gun. It was a bright night. The moon was shining, and it was just after dark. Lee Monroe and Will Monroe were on horses, riding behind the buggy. They got with us when we first left home, and stopped before we got to the Arbor, to turn out a yoke of oxen. They stopped before we saw Marshall and Tom on the road, and they overtook us about the time we got to the Arbor, or just as we passed it. I don’t remember telling the justice of the peace the following: ‘That Marshall Cline did then and there, on the public road leading from Wael-der to Flatonia, shoot and kill Spencer Cunningham, and shoot me at the same time. Tom Cline and Dan Cline were with him. I do not know whether they shot or not. They came up to me cursing, and were armed. I shot at them, too. They stopped me in the road — one on each side of the road. The gun I shot with was a single-barrel shotgun. I do not know whether they were all armed or not.’ I did make a statement to Mr. Harrison on the day after the shooting. I was in bed, suffering a great deal, and was bleeding at the mouth, and could hardly talk. The doctor was with me at the time. I was confined to my bed for two months with my wounds. It is impossible for me to tell what I did say to the justice of the peace, for I was suffering so I could hardly talk at all. The brush was thick on the sides of the road where the shooting occurred. Lee Monroe is my nephew. A meeting was going on at the Arbor on the night of the killing. When Marshall stopped our team, he said, ‘Hold on, boys,’ and held on to the mule, and I jumped up with my gun in hand, and Marshall Cline shot me. I had my gun in a shooting position, but I was shot by Marshall Cline before I shot. Tom and Dan Cline were four or five steps from the buggy. I was falling when I shot. The gun went off accidentally. Will Monroe and Lee Monroe, who had started out with us, but stopped to put oxen in a pasture, had not caught up with us. At the time we passed Walter Winkfield and Marshall and Tom Cline in the road we had driven about half-, after passing them in the road, before the shooting occurred. At the time Marshall and Tom Cline passed us they were riding in a lope towards the Arbor, and it was after we passed the Arbor that the shooting occurred. I did not swear before Justice Harrison that I did not know whether Dan and Tom Cline were armed or not, and that the Cline boys came up cursing, and that I shot at Marshall Cline. I stated that I was aiming to shoot, but that I did not shoot until I was shot and was falling. I don’t know who was present. Mr. Wyatt and Taylor might have been present. I was suffering so I could scarcely talk, and took no notice of wbo was present at tbe time I was questioned by Justice Harrison. Being shot in tbe moutb, and my teetb being knocked out, I could not talk plainly. Tbe only trouble I or we bad with tbe Cline boys before tbe niglit of tbe shooting was tbe night before tbe shooting, about a coat, which I have already stated. I did not load tbe gun I bad, and don’t know what it was loaded with. Lee Monroe bad been bunting rabbits and squirrels with it, and told me be bad loaded it to bunt squirrels with.” ■
    Lee Monroe, sworn for tbe State, says: “I knew Spencer Cunningham, wbo is now dead. I know Dan Cline, and see him in court. I know Tom and Marshall Cline and their brother. Dave Cunningham is my uncle. On tbe night of July 28, 1893, Will Monroe and myself started on horseback to Wesley chapel, and we got with Dave and Spencer Cunningham, wbo were in a buggy. We rode along behind them a short distance, and then turned out of tbe road to turn out a yoke of oxen, and then overtook Dave and Spencer Cunningham just after they passed tbe Arbor, and as we all got about one hundred yards from tbe Arbor I saw Marshall Cline, Tom Cline, and tbe defendant, Dan Cline, come out of the bushes on tbe side of tbe road. I think Tom was on the left side of tbe road. Dan was on tbe right side, and Marshall went in front of tbe horse and buggy, and stopped tbe buggy, and at that time said ‘Buff! Buff!’ and then commenced shooting. When Marshall caught hold of the horse’s bridle and stopped the buggy, he raised his gun and commenced shooting. As he raised his gun, 'Dave Cunningham partially raised himself in his buggy, and the shooting commenced, and Dave fell over the dashboard of the buggy. I did not see Dave shoot. He may have shot. When Dave Cunningham fell Marshall Cline said, ‘Oh, God damn you, I told you so.’ I then ran back up the road, and looked back, and saw flashes from all three of the defendants. They all were shooting. Spencer jumped out to run. Dave ran up the road. There were two guns in the buggy, but did not see either of the Cunning-hams shoot. Martin Cunningham bought the shot the guns were loaded with. I think the guns were loaded with buckshot. He got the shot to kill rabbits with. I never heard either one of the Cun-ninghams say a word. Did not know of any trouble between the Cunninghams and the Clines. I did not have any weapons of any character. I and Will Monroe were riding a short distance behind the buggy of Dave and Spencer Cunningham at the time of the shooting. I heard about sixteen or seventeen shots; just this way: Boom! Boom! Boom! We stopped when the shooting began and remained until we were shot at, and then we ran back down the road. The shots were very rapid. Spencer Cunningham died in the brush, near where he was shot. At the time of the killing I was living with Martin Cunningham. When we left Cunningham’s house, Dave, Spencer, and Steve Wilson were in the same buggy, but Steve Wilson only rode in the buggy about iiffcy or one hundred yards, and got out just before I and Will went to turn the oxen in the gate, and went back towards the house, and I afterwards saw him and two women going towards the Arbor through the field, walking.”
    Will Monroe, sworn for the State, says: “I was with Lee Monroe when we started to Wesley chapel. We stopped to turn out a yoke of oxen. We overtook Dave and Spencer again near the Arbor. Lee and myself were riding horseback, and after we passed the Arbor, and the first I saw of defendants, they were in the road, and going down the road. I did not see them until the buggy was up nearly to them. Marshall was in front of the horses, and stopped the horses. Dan Cline was on one side and Tom was on the other. Tom and Dan were in the edge of the brush, and I could not see them as well as I could Marshall. When Marshall stopped the buggy he said something, and raised his gun and commenced shooting. Dave Cunningham fell out in front of the buggy. When Marshall first shot, my horse turned around. I did not see Spencer get out of the buggy, and don’t know how or when he got out. I looked back and saw all three — Marshall, Tom, and Dan — shooting. When I saw Dave Cunningham he was shot in the jaw. I took him home.”
    Mack McGee, sworn for the State, says: “I know the defendant and his brothers, Marshall and Tom. I was living in the neighborhood of the shooting. On the evening of the shooting I was at Will Nichols’, and Marshall Cline came up there a’nd called me out, and Marshall said to me, ‘What were you doing with those fellows [he was talking about the Cunningham boys] last night1?’ I told him I was on my way from church. He said, ‘You seem to be a pretty good fellow, and if the business don’t concern you, you had better not be with them to-night, for if they come out to night, by God, I am going to commence shooting, and kill everything in sights He said, ‘By God, I have danced my mother, sister, and father, and everybody else,’ and that they would have tackled them last night, but did not have enough cartridges; but he had just come from Flatonia, and had plenty now. He then left, going towards his home. That night I was on my way to church at the Arbor, and when I got within about 400 yards of the Arbor I heard a volley of shots. Can not tell how many. Thought there were eighteen or twenty. Could not count them, they were so fast. About that time some one came by on horseback. I got behind him, and we ran there as fast as we could. When I got there I saw Marshall Cline, Dan Cline, and Tom Cline standing under a tree between the Arbor and the shooting. At that time Marshall Cline had a Winchester. Dan Cline had a pistol, and Tom Cline had a Winchester. I saw another gun, which they said was Dave Cunningham’s gun. Old man Abe Cline bad it. I saw two white fellows there. They then left. Don’t know where their horses was. I am no kin to the Cun-ninghams nor to the Clines. My feelings are the same towards both. Old man Abe Cline is here in the court house. I was attached and brought here by the defendants. I was with the Cunningham boys the night before, but was on my way home. Never heard them say a word about the Cline boys.”
    Work Stewart, sworn for the State, says: “I know the Cunningham boys and the Cline boys. I was at the Arbor the night before the shooting, and was present when a difficulty occurred between the Cline boys and the Cunningham boys. It seemed that Dave Cunningham and Tom Cline had sometime before that exchanged or swapped coats, and on that night Tom Cline tried to make Dave give him back his coat, which Dave refused to do. Tom Cline said to Dave, ‘If you will go away from the church I will get my coat or get you;’ and I spoke to Dave and said to him not to have any trouble, and Dave went back to the Arbor. Marshall, Dan, and Abe Cline were present. Marshall had a Winchester. Abe Cline said, ‘I would have my property or go to hell trying.’ I heard the Cline boys making -, and I sent home for my gun for Dave Cunningham. It was brought, and put about 100 yards from the Arbor, by a tree, and when church was over I got it, and carried it home. I went along the road with the Cunningham boys and some others. We stopped on the way to wait for some one to catch up. While we were there, the Cline boys came by. We all had to travel the same road going home. There was nothing said by any one when the Cline boys passed. I am a brother-in-law to the Cunningham boys. We waited sometime for whoever it was, and then started on home. When we passed by where the Cline boys live, they came out to the gate. Marshall had his Winchester, and one of the others had a pistol. I was not present at the time of the killing. I am also related to the Cline boys.”
    Tamer Moore, for the State, said: “On the evening of the killing, about 4 o’clock, I was at Abe Cline’s, the father of defendant, and while there Marshall came up on horseback, got down, and came in. He said he had been to Flatonia. He laid some cartridges on the water shelf, and then loaded his Winchester. He then commenced talking about the Cunningham boys, and his father was present, and told him that he expected the sheriff would be out after him to-night. Marshall said, ‘If he comes, it won’t be for nothing;’ that the other boys would get the worst of it. Marshall then said, ‘If the Cunningham boys come out to-night, we will get them.’ He then asked his father when would Tom Cline get back with the other gun; that he wanted him to hurry back, for they would need it. He then went out into the yard and shot his gun twice, and she shoots to the mark. I am kin to both families.”
    
      R. K. Wyatt, for tbe State, says: “I am deputy sheriff of Waelder, and on the day of the shooting I saw Dave and Spencer Cunningham in Waelder, and had a conversation with them, and on that night I was notified of the shooting, and went to the place. We found Spencer Cunningham dead near the road. He was shot. We found his gun, which had not been fired. It was a muzzle-loading shotgun. The buggy was also there. That was said to be the buggy in which Dave and Spencer were riding.”
    Richard Kindred, for the State, says: “I know Marshall, Dan, and Tom Cline. On the night of the killing of Spencer Cunningham I was keeping a stand at the Arbor. I saw all three of the Cline boys there — Marshall, Tom, and Dan. I did not see the Cunningham boys there. Sometime after dark Marshall, Dan, and Tom Cline were at my stand. They had a conversation. Marshall and Tom got on their horses, and rode off in a lope. They were going towards their home, and also towards the Cunninghams’ home. I saw Marshall with a Winchester. Dan remained after Marshall and Tom left. They were not gone long until they came riding back in a lope, and called Dan off, had a talk, and then Marshall, Dan, and Tom disappeared in the brush. They had been gone but a few moments before I heard a buggy pass by along the public road. In going from Cunningham’s to Wesley chapel they would have to pass by the Arbor. After I heard the buggy, in a short time I heard a volley of shots. Could not count them, they were fired so rapidly. After the shooting I saw Marshall, Tom, and Dan Cline. I think Marshall was, so he said, shot on the arm. It was at my stand when I saw them. There were some white boys at the stand when they were there. I don’t know what Marshall and Tom did with their horse. They then left. Don’t know where they went. Marshall’s arm was bleeding.”
    Joe Clark, for defendant, says: “On the night of the shooting I was going to the Arbor to church. Roy and Tack Halliburton were ' with me. When we got within 400 yards of the Arbor I heard some shooting. The first shot was a very loud one — sounded like a big gun, heavily loaded. We walked on, not expecting there had been any trouble. We were walking. When we got there, Marshall, Dan, and Tom Cline were at Kindred’s stand. Marshall was shot in the arm. I heard him say he did not see why the Cunningham boys wanted to treat him that way, for he had nothing against them. Marshall had a Winchester, but Dan and Tom had nothing that I saw. I know Henrietta French. She is the sister of the Cline boys. I am not on intimate terms with her. When I heard the shooting, Roy Halliburton was hiding his Winchester. He brought it from home with him.”
    Roy Halliburton, for defendant, says: “I was on my way to the Arbor with Tack Halliburton and Joe Clark on the night of the shooting. We were within 400 yards of the Arbor when we heard the shooting. We went on to the Arbor. The shots were not alike. The first sounded like a shotgun, the others like a Winchester. I can tell the difference. When we got to the stand at the Arbor Marshall, Tom, and Dan were there. Mack McGee was there. Marshall was shot in the arm. He said he was going to the exhibition at Wesley chapel, and that the Cunningham boys drove up, and Dave raised his Winchester up and shot him. Marshall had a Winchester. Did not see Tom and Dan with any weapons. Don’t know where their horses were. I did not have any Winchester when I left home, nor on the way to the Arbor. I was not hiding a Winchester when I heard the shooting, for I had none. ' I know Joe Clark and Henrietta French. I see him going with her a great deal.”
    Caesar Moore, for defendant, says: ‘ ‘ On the night before the killing I passed along the road from the Arbor, and I saw several parties sitting on the side of the road. I was riding. Work Stewart was one of them, and I said, ‘ What are you doing there that time of night with that old gun?’ He said he was going to shoot some rabbits. I said, ‘You can not kill rabbits that time of night.’ He said, ‘By God, if the right kind of rabbit comes along, and I pull the trigger, I will get him.’ ”
    The defendant introduced the statement made by Dave Cunningham to W. E. Harrison, J. P., on the day after the shooting:
    “ State of Texas, County of Gonzales, July 29, 1893. — Dave Cunningham, being by me duly sworn, says: On the night of the 28th of July, 1893, in the county of Gonzales, east of Waelder, that Marshall Cline did then and there, on the public road leading from Waelder to Flatonia, shoot and kill Spencer Cunningham, and did shoot me at the same time. Tom Cline and Dan Cline were with him. I do not know whether they shot or not. They came up to me cursing, and were armed. I shot at them, too. They stopped me in the road — one on each side of the road. The gun I shot with was a single-barrel shotgun. I do not know whether they were all armed or not.
    “Dave X Cunningham.
    “Sworn to and subscribed this the 29th of July, 1893.
    “W. E. Harrison, J. P.,” etc.
    Dan Cline, the defendant, sworn for himself, says: “On the night of the shooting I went from my sister’s, who lives on the west side of Peach creek, to the Arbor. When I got there, Marshall, Tom, and Abe Cline were there. In a short time after I was there, Tom Cline said he was going home, and would come back and we would go to Wesley chapel to the exhibition. Him and Marshall left, and after-wards they come back, and we all three started down tbe road to Wesley chapel, and had not gone far when we were overtaken by Dave and Spencer Cunningham, who were travelling in a buggy. We were walking down the public road. I did not have any weapon. Marshall had a Winchester. When the buggy drove Tip I got out to one side of the road, and Marshall and Tom got out to the other side, and one of the men in the buggy said, 'Hold up !’ and then raised up in the buggy and shot Marshall on the wrist. The gun he shot with was an Enfield rifle. When the man fell out of the buggy he got up and ran up the road, and the other one ran in the brush. We did not say anything about the Cunningham boys when we were going down the road. I did not know the Cunningham boys. After the shooting we went to the Arbor. We saw Boy Halliburton and Joe Clark there. Mack McGee was there. Abe Cline had the gun that the Cunninghams shot with. I was not armed and did not shoot. I never saw Marshall and Tom Cline that evening until I went to the Arbor. Tom and myself were on our way to Wesley chapel, and Marshall was going to his sister’s, Henrietta French. Lee and Will Monroe were not there. The next morning Tom and myself started to Waelder. Marshall was arrested that night, but we met the constable. I don’t know what Tom Cline wanted to go home for before he went to Wesley chapel; he did not say. Tom and Marshall started home, but they did not go. I do not know what they did with their horse when they came back; don’t know why they were going to walk to Wesley chapel. I have been to the penitentiary for shooting a man; had not been back but seven or eight days when the shooting took place. I am older than Tom or Marshall. It was about two miles from the Arbor to Wesley chapel. My father lives about two and one-half miles from the Arbor.”
    B. K. Wyatt, deputy sheriff, recalled by State, says: “I was present on the morning after the shooting, when Dave Cunningham was examined by Judge Harrison. Dave was in bed and was in a bad condition; he was bleeding at the mouth and could hardly talk. It was almost impossible to understand what he said, on account of his wound. He seemed'to suffer very much. The doctor was with him.”
    No briefs found with the record.
   HUBT, PRESIDING Judge.-

This is a conviction of murder in the second degree. Appellant’s punishment was assessed at confinement in the penitentiary for ten years.

The State’s theory is, that this homicide was committed in pursuance of a conspiracy between Marshall, Tom, and Dan Cline; that one of them killed deceased, and all were present. The testimony for the State makes Marshall the aggressor, and after the first shot Tom and Dan took part in the shooting. It is not known which inflicted the mortal wound. The State introduced in evidence preparation and threats made by .Marshall. To this appellant objected, contending that no conspiracy had been shown. We are of opinion that a conspiracy at least existed between Marshall and Tom, and there are strong circumstances tending to show that appellant entered into the conspiracy before the killing. The Eeporter will give the facts.

Concede that the evidence does not present a prima facie case of conspiracy. Still, the preparations and threats of Marshall are most evidently competent upon another ground. The jury may not have believed that if there was a conspiracy appellant belonged to it, but may have believed that Marshall was the aggressor, and that those present knew it, and with this knowledge took part in the shooting which resulted in the death of the deceased. Appellant contends that the deceased or his brother (who was riding with him in the buggy) was the aggressor, and began.the shooting, etc. Now, in support of the theory that Marshall was the aggressor, that he began the fight, his preparation to kill the Cunningham brothers (deceased included), and his threats to do so were competent evidence upon this issue.

The most important witness for the State (Lee Monroe’s testimony coming as it does in such doubtful shape) was Dave Cunningham. He not only swears that Marshall stopped the horses to the buggy and that he fired a pistol, etc., but he places Tom and appellant near by, armed, and in fact swears that they all fired, making a clear case against appellant independent of a conspiracy. When this witness testified before the examining court he made no such case against the appellant. He then swore, that Marshall shot and killed his brother; that Tom and Dave were with him; that he did not know whether they shot or not. This testimony, given before the justice of the peace, was introduced by appellant for the purpose of impeaching Dave Cunningham. Upon this matter the court instructed the jury: “A witness may be impeached by showing that a witness has made and sworn to other and different statements at another time and place from those made on the trial. The object of this class of evidence is not to prove what the witness swears to in the trial is untrue, but to show his unworthiness of belief, and it goes to you like all other evidence, to be considered by you in arriving at a verdict.” If the object of such evidence is not for the purpose of convincing the jury that what the witness swears on the trial is untrue, then to permit a man to be so impeached is a judicial farce. Why impeach him at all? Simply for the fun of doing it? A witness who will make conflicting statements under oath regarding important facts may not tell the truth, and a jury would be justified in taking his testimony given on the trial as absolutely false. The only purpose for which such evidence (impeaching) can possibly serve is to warrant the jury in rejecting the testimony of the witness because not probably true. But we can add nothing to wbat was said on this subject by Presiding Judge White, in Howard v. The State, 25 Texas Criminal Appeals, 686.

Reversed and remanded.

Judges all present and concurring.  