
    HOLLAND v. STATE.
    (No. 4697.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    1. Criminal Law <@=>814(13) — Instructions—
    Presumption op Insanity.
    In a prosecution for manslaughter, it was not error, where the evidence failed to show that defendant had ever been adjudged insane or that his insanity, if any, was permanent, to refuse to charge on the presumption of insanity at the time of the offense.
    2. Criminal Law <@=>779 — Evidence — Instructions.
    In a prosecution for homicide committed as the result of an alleged conspiracy to assault deceased, it was error to fail to charge that acts and declarations of a conspirator in defendant’s absence was inadmissible to establish a conspiracy.
    3. Homicide <@=>305 — Instructions.
    In a prosecution for manslaughter alleged to have been committed following a conspiracy between three brothers to assault deceased, an instruction that if defendant’s brother knew nothing of the difficulty between defendant and deceased, “and” knew nothing of any conspiracy, defendant should be acquitted, was erroneous, since he might have known of the difficulty, and still not entered into the conspiracy.
    Appeal from District Court, Callaban County; Joe Burkett, Judge.
    Norvin Holland was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. E. Cunningham, of Abilene, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is a second appeal from a conviction for manslaughter. The decision in the Gr'st is reported in 192 S. W. 1070. While the proof on this trial was perhaps clearer and stronger against appellant than on the first, a sufficient statement of the case was made on the first, so as to make a statement now unnecessary. None of the questions raised on the first appeal arise on this. There are but few questions to be passed upon.

Appellant contends that the court below erred in not charging the jury that, if they believed from the evidence that before the commission of the offense charged the proof showed that he was insane, and his insanity was of a permanent character, then the law presumed that he was insane at the time the offense was committed, unless the state had shown by a preponderance of evidence that the defendant had recovered from his insanity before he committed the act'in question. In some cases a charge of this character is necessary, but this case does not come within that rule. Some of the evidence herein may have tended to show that appellant may have been somewhat insane because of severe illness some five or six years before he is charged with the commission of this offense, but it does. not show that he had ever been adjudged insane, nor that the character of his insanity was permanent. The state contended he was never insane. The evidence did not authorize or justify the court in charging as claimed by appellant. Neither did the court err in his general charge on the subject of insanity, and in submitting that question to the jury. His charge was substantially in accordance with the charges on that subject many times approved by this court.

The state proved by two witnesses, Gamble and Ford, declarations made by Dorman Holland to them, in the absence of appellant, some few days before Dorman Holland. killed deceased. This evidence was clearly admissible on the theory, amply supported by the testimony, that the three brothers, appellant and Dorman and Hill Holl'and, entered into a conspiracy to do deceased great violence. The court in his charge failed to instruct the jury that they could not consider the acts and declarations of Dorman Holland, made in the absence of appellant, for the purpose of establishing a conspiracy. Appellant properly objected to the court’s charge on that account,, and was allowed a proper bill. The court erred in not so instructing the jury. *

Appellant has another objection to the court’s charge, which, we think, also shows error. The charge is to this effect: That if the jury believed from the evidence that Dorman Holland knew nothing of the difficulty between the defendant and deceased, and was not concerned and did not know of any conspiracy or agreement, and was not a party to any conspiracy or agreement, to whip the deceased, etc., if there was any such conspiracy, then in the balance of the charge submitting that under those circumstances, in effect, he would have the right- to kill the deceased in protection of Norvin, his brother. It would be wholly unnecessary for the jury to believe that Dorman Holland knew nothing of the said difficulty if, as a matter of fact, he did not enter into the conspiracy. He might have known the fact, and still not have entered into the conspiracy. The court in his charge couples both of these things with the conjunctive “and” that he must have known nothing of the difficulty and was not concerned, etc., in the conspiracy. This charge should be corrected on another trial.

Reversed and remanded. 
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