
    THOMPSON v. STATE.
    (No. 3613.) 
    
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Dissenting Opinion, Oct. 9, 1915.)
    1. Criminal Daw &wkey;>423 — Evidence—Conspirators — Evidence oe Conspiracy.
    Though all the testimony for defendant is to the contrary, yet, if the testimony as a whole raises the issue that defendant and his wife were acting together in making the assault, then her acts and declarations during the time of the preparation for the act and while it was being consummated are admissible.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 989-1001; Dec. Dig. <&wkey;> 423; Assault, Cent. Dig. § 129.)
    2. Criminad Daw <&wkey;427 — Conspiracy—Reception oe Evidence — Order.
    Where a conspiracy is shown, it is immaterial that this is not done until after introduction of acts and declarations of a co-conspirator.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1012-1017; Dec. Dig. <©=> 427.)
    3. Criminal Daw <©=427 — Evidence — Conspiracy.
    A conspiracy may be shown by circumstances.
    [Ed. Note. — For other casest see Criminal Daw, Cent. Dig. §§ 1012-1017; Dec. Dig. t&wkey;> 427.)
    4. Criminal Law <&wkey;427 — Evidence—Conspiracy — Declarations oe Co-conspirator1.
    While a conspiracy cannot be shown by declarations of a co-conspirator alone, they may be considered thereon in connection with other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <&wkey;> 427.)
    5. Criminal Law <&wkey;427 — Evidence oe Conspiracy — Sueeiciency.
    Evidence, on a prosecution for assault to murder, held sufficient to authorize a finding that defendant and his wife were acting together, rendering her acts and declarations admissible on the issue of whether he fired.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. <S&wkey; 427.)
    6. Witnesses &wkey;>52 — Conspiracy—Declarations oe Wife.
    Admission against defendant of the acts and declarations of his wife as a co-conspirator is not compelling her to testify against her husband, in contravention of the statute.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 124, 126-136, 165, 415, 416, 417, 419, 424; Dec. Dig. &wkey;52.)
    7. Criminal Law t&wkey;824 — Appeal—Instructions — Necessity oe Request.
    Failure to instruct that if the jury did not find defendant’s wife was acting with, aiding, and abetting him, they should not consider her acts or declarations, cannot be complained of, no such instruction having been requested, but defendant having relied solely on his objection that the testimony was inadmissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. &wkey;> 824.) ’
    8. Homicide <&wkey;178 — Evidence — Remoteness.
    The evidence sought to be elicited by defendant, charged with firing at S. from ambush, that 20 years before, shortly after the killing of C., with which S. was charged, S. was fired at from ambush by C.’s brother, was too remote in time.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 307-309; Dec. Dig. <&wkey;>178.]
    9. Criminal Law i&wkey;1055 — Appeal — Conduct oe Counsel — Request for Instructions.
    Though it was improper for the district attorney, in presenting the case, to say that the filing by defendant of a plea for suspended sentence in case of conviction was a baby act, and equivalent to an admission of guilt, and that the suspended sentence law did not apply to old men, was improper; yet, it not being such error that an instruction would not have cured it, it cannot be complained of, in the absence of exception thereto, and request for, and refusal of, an instruction to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dee. Dig. <&wkey;> 1055.)
    Davidson, J., dissenting.
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Silas Thompson was convicted, and appeals.
    Affirmed.
    Moore & Short, of Gatesville, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
    
      
       Rehearing denied October 4. 1915.
    
   HARPER, J.

Appellant was convicted of assault to murder, and Ms punishment assessed at two years’ confinement in the state penitentiary.

Charley Smith is the alleged assaulted party. The evidence shows Smith’s and appellant’s farms joined; that the Branchville schoolhouse, located on a small plot of ground, was moved, when appellant and Smith both claimed the ground on which the school had stood. Words ensued and a had state of feeling engendered. It is shown that in a telephone conversation appellant said to Smith: “G — d d — n you! Stay oft that land.” Smith replied, “I expect if you will come over there this evening you will find me plowing,” when appellant respondent, “If you do, G — d d — n you, I will make it hot for you.” Appellant admits using this language, but says he intended to make it hot for Mm in law. Several days after tMs, while Smith and Searcy Glass were plowing in this plat' of ground, and Floyd Blanchard was cutting bushes, Mrs. Thompson (appellant’s wife) on her way to the Flat saw them at work and went in at the gate, and asked them what they were doing, to which Smith replied they were breaking the land. Mrs. Thompson ordered them to get off of the land, Smith replying he was not going to get off. Mrs. Thompson then left, going in the direction of her home, saying, as she did so, “You will go when I get back.” Smith testifies that, in about 10 minutes after Mrs. Thompson left, he saw appellant on the railroad dump going in the direction of Grover Beck’s. He is very positive that it was appellant he saw, saying “The man I saw was Silas Thompson”; that he had on a pair of bright yellow pants ; that, pretty soon after he saw Thompson on the railroad dump, Mrs. Thompson returned and came from towards her home. He says she again demanded that he get off the ground, and testifies:

“I do not know that I could repeat the old lady’s language, but it was just a demand to get off the land. The old lady had her right hand under her apron against her body that way, and she spoke to me in such emphatic terms, and I asked her if she had a pistol under her apron, and she said she did, and I said, T suppose you aim to use it?’ and she said she did, and I says, ‘Give me time to unhitch my team from the plow,’ and told her I did not want my team to run away and get cut up in the wire, and I told her if I was as low down as they thought I was it would not be against the law to kill me, and we talked on, and she asked me if I was willing to arbitrate it, and I told her I was, and that I was not only willing to arbitrate it, but, if she would go out of the community where it would not involve our neighbors, that I would let her choose the arbitrators, and she selected Juber Brown and Mr. Edwards and Bailey, and I told her I would abide by what they said, and I asked her would Silas abide by it, and she said she did not know, she thought he would, but he would be there in a few minutes, and said for me not to say anything that would fret him, and I told her it was a business proposition with me, and that I would not say anything to aggravate him; and I asked her where he was, and she said he was over in the field, and said that she told him to come over here, that I was over here, and said that he started, but she did not know where he went, and I said, ‘He went down to Beck’s to get his gun,’ and she did not make any reply, and about that time the first shot was fired, and I turned to look in the direction of where the shot seemed to have come from right across the dump with the lay of the land. The ground I was on was nearly level with just a little slope to the south. The mountain was south and southeast of where I was, just across the railroad dump. The point of that mountain was covered with bushes. It was 60 or 70 yards from where I was standing to those bushes on the point of the mountain. Mrs. Thompson was 10 or 12 feet from me when the first shot was fired, and when the first shot was fired she walked about that much further, and says: ‘You had better get out of here now; you are going to get hurt, and you are going to get hurt bad.’ And I told her that I would not go off in the condition I was in, that I might be carried off, but I would not go in the condition I was in; and we began to talk about the arbitration again, and then there was a second shot fired. It was from three to five minutes from the time the first shot was fired until the second one was fired. That second shot hit me. It hit me in the right shoulder or arm, and my team got to cutting up, and I told the boys not to let them get in the wire, and the Blanchard boy jumped and grabbed the team, and I told Glass to unhitch them from the plow, and by that time I had my shirt unbuttoned, and Glass asked me if I was hurt much, and I told him I thought my shoulder was broken, and when they got the teams unhitched they came to where I was, and I told them that I thought it was only a flesh wound, and Searcy asked me if we had better not cross the creek, and I told him, yes that I had better go home, that I was losing a good deal of blood, and we start* ed and got across the creek north of where I was standing and a third shot was fired. There was some brush on that creek, but not so very much at that point. Any one shooting at me from the point of the mountain could have seen me where I was when the third shot was fired. After the third shot, I went home and did not hear anything more. I did not hear the bullet from the third shot.”

Searcy Glass testifies, in substance, to the same state of facts, only he was not able to identify the man on the railroad dump.

Floyd Blanchard also testifies to the same state of facts, adding that when she left the first time he heard her say she was going to get Silas. He says he did not recognize the man on the railroad dump, but he had on a pair of bright yellow pants. He further testifies that, after the second shot was fired, he saw a man jump off the point of the mountain into the cut. The man he saw jump into the cut had on yellow pants; that this was the point from which the shots came, and after the shooting he went up there with the sheriff, and they found a man’s track and a woman’s track going in the direction of the Thompson home.

It can hardly he gainsaid that Mr. Thompson was the man these people saw on the railroad dump,' for in Ms testimony he admits that, after his wife left home, he decided to go to Grover Beck’s and borrow his 30-30 rifle to kill some rabbits that were destroying his potato patch; that he traveled the road these state witnesses say; and also admits that he had on yellow pants, and was on the railroad, dump.

Grover Beet testifies that appellant came to his house and borrowed his 30-30 rifle between 12 and 1 o’clock.

Of course, if we take the defendant’s testimony and the testimony of his witnesses alone, the question of whether or not appellant and his wife were acting together would not be raised, for Mrs. Thompson says on this trial she did not see her husband from the time she left until after the shooting. Appellant also so testifies, and his daughter-in-law Mrs. Myrtle Thompson’s testimony would strongly support that theory. But we must take the testimony as a whole, and, if it raises the issue that they were acting together, then the acts and declarations of each are admissible during the time of the preparation for the act and while it is being consummated. In Phillips v. State, 6 Tex. App. 380, the following quotation from Wharton on Evidence, § 1205, is quoted approvingly:

“The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all.”

Judge White, in the well-considered case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, discusses this question thorougniy, and holds that the old rule that a conspiracy must first be established ipso facto, before proof of acts and declarations of the individuals engaged therein are admissible against each other, is now exploded. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts or declarations. And in that case it is correctly held that an acting together may be shown by circumstances, for it is rarely ever possible to obtain positive testimony of a conspiracy. And while a conspiracy cannot be shown alone by the declarations of an alleged co-conspirator, yet such declarations may be taken into consideration in connection with other facts and circumstances in the case, and, if the evidence as a whole justifies and supports a finding that the parties were acting together in the commission of the offense, the testimony is admissible.

Now, what facts and circumstances does the state offer in evidence to show that appellant and his wife were acting together in making the assault on Smith. It introduces in evidence a telephonic conversation between appellant and Smith, in which appellant said, “G — d d — n you! I will make it hot for you.” A few dayá subsequent to this, while Smith is on the land, Mrs. Thompson appears on the scene and orders Smith off the land, and, when he refuses to go, she turns and leaves, saying as she did so:

“You will go when I get back. That she would go and tell Silas (appellant) and he would put Smith off.”

In about 10 minutes after Mrs. Thompson leaves, appellant is seen on the railroad dump, going in the direction of Grover Beck’s. He borrows a rifle at Grover Beck’s, getting either three or five cartridges. Appellant admits he went to Grover Beck’s and borrowed the 30-30 rifle, and that he had on bright yellow or khaki pants. About 10 or 15 minutes after appellant is seen on the railroad dump going in the direction of Beck’s, Mrs. Thompson reappears on the ground and again orders Smith off the land. Some discussion arose in which an arbitration was discussed.. When Smith asked Mrs. Thompson if Silas (appellant) would agree to it, she said appellant would be there in a few minutes. Smith asked her where appellant was, and she responded:

“He (appellant) was over in the field, and said that she told Mm to come over here; that he (Smith) was over here, and he started, but she did not know where he went.”

Smith replied that he had seen appellant and Silas had gone over to Beck’s to get his gun. Mrs. Thompson did not reply to this remark, for about this time a shot was fired from a clump of bushes at a point on the mountain some 60 or 75 yards away. When this shot was fired Mrs. Thompson said:

“You had better get out of here now. You are going to get hurt, and get hurt bad.”

A second shot was fired which struck Smith in the shoulder. Smith and those with him turned to go home, and while they were going a third shot was fired which went into a tent and struck an iron bed post. Eloyd Blanchard says, just before the third shot was fired, a man, wearing bright yellow pants, jumped down from this point on the mountain. When he saw Mrs. Thompson leave, she went in the direction of the point where this man was seen. Later the ground was examined, and a man’s track and the track made by a woman’s shoe were found, and near the clump of bushes from where the shots were fired a 30-30 empty shell was found. TMs shell fitted the gun appellant had borrowed from Beck that day, and when arrested at home that evening he was wearing yellow pants and had Beck’s gun in Ms possession. These and some other circumstances are relied on by the state to show that appellant and his wife were acting together, and we think would authorize a jury to so find. It may be that she did not know that he was going to shoot from ambush, if he did do so; but it certainly would authorize them to conclude that when she saw Smith at work on the plat of ground in question, and he declined to leave when she ordered him to do so, she went in search of her husband and found him, fox when she comes back she says she had found him, although she on the trial denies it. When she found him she explained to him Smith was plowing' the land. She was aware that he went to Beck’s after his 30-30 rifle, and she expected him to return with it and make Smith leave. She may not have understood that appellant would shoot from ambush, and she not be responsible for that act, but there was such an acting together in an effort to make Smith get off the land and in preparation to accomplish that object as to render her acts and conduct admissible on the issue of whether or not appellant was the person who fired the shot from the clump of bushes on the point of the mountain.

Appellant seems to think this would be compelling the wife “to testify against the husband.” Mrs. Thompson was not called as a witness by the state. Of course, Mrs. Thompson could not have been called to prove these facts, and if she had been appellant’s objection would be sound and tenable. But the state proved these facts and circumstances By other witnesses, and the acts and declarations of the wife are admissible against the husband, which are res gestee of the transaction, if she is an aider and abettor of her husband in the commission of the' offense. Judge White reviews the authorities and decides this question in Cook v. State, 22 Tex. App. 511, 3 S. W. 749. He says:

“With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of' Russell, they were admissible as verbal acts and were clearly parts of the res gestee, and consequently did not come within the rule announced in article 735, Code of Criminal Procedure, which prohibits a husband and wife from testifying against each other in a criminal prosecution.
“Again, the evidence as developed in this case shows that the husband and wife acted together in the commission of the offense, and are both principals, and the rule is uniform that the declarations of one of the parties principal made at the time, during the progress and in furtherance of the common design, are admissible in evidence and binding upon the other co-conspirators. Cox v. State, 8 Tex. App. 256 [34 Am. Rep. 746]; Loggins v. State, 8 Tex. App. 434.”

It may be that the court should have instructed the jury that if they did not find that Mrs. Thompson was acting with, aiding, and abetting her husband, they would not consider any testimony as to her acts or declarations, in passing on. the guilt or innocence of appellant. But appellant made no such objection, nor requested any such instruction, relying solely upon his objection that the testimony was inadmissible. This objection cannot be sustained, for the state introduced sufficient evidence, circumstantial and otherwise, to render the testimony admissible, and the court did not err in so holding.

On cross-examination of Charley Smith, appellant was permitted to ask him if he was indicted* for the murder of Ed Cash some 22 years ago. He answered that he was, but that the case against him was dismissed. Appellant then propounded to him the question if, since the killing of Ed Cash, he, prosecuting witness, had not been shot at from ambush before this time. The state’s objection that this was too remote was sustained by the court. The court in approving the bill states he had the witness state to him before ruling what his answer would be, and his answer would have been:

“That over 22 years ago one Ed Cash was killed by mob violence in Coryell county, Tex. C. G. Smith was charged with murder growing out of that transaction, the case against him never being tried, but having been dismissed. I permitted the proof of cross-examination of the witness Smith that he had been charged with murder in connection with the killing of Ed Cash, although, if the state had objected to it, it probably would not have been admissible on account of its remoteness. The defendant asked Smith if, after the killing of Cash, he (Smith) had not been shot at. The state objected to the question and answer, and I sustained it. The witness Smith would have sworn that shortly after Ed Cash was killed one of his brothers, to wit, Virgil Cash, did shoot at him (Smith), but that this took place about 20 years ago. If permitted to do so, Smith would have sworn to the facts as stated in this qualification, i. e„ that he was shot at by Ed Cash’s brother shortly after Cash was killed, but he would not have testified as to any other shooting by any other parties at any other time.”

This was too remote in time, and the court did not err in so holding.

In another bill it is shown that in presenting the case the district attorney said:

“That the plea of the defendant filed herein, wherein the defendant asked for the suspended sentence in case they found him guilty and assessed his punishment not to exceed five years, was a ‘baby act’ on the part of the defendant, and that if he (district attorney) was ever charged with a crime and was innocent he would never file such a plea. That the filing of the same was equivalent to an admission of guilt. That the law was enacted for the benefit of the young men, and did not apply to old men like the defendant.”

Of course, it was improper for the district attorney to say “that the filing of such plea was equivalent to a plea of guilty,” but it was not such error that an instruction by the court that it was improper, and that the jury should not consider it, would not have cured the error. Appellant requested no such instruction be given, and presented no special charge in regard thereto; consequently it presents no such error as will necessitate a reversal of the case. District attorneys should never use such remarks. The suspended sentence law was thought to he a humane provision of law, which might work a reform of first offenders and make of them good and useful citizens, and it applies to old as well as to young men. One may be innocent of any wrongdoing and yet, recognizing the strength of the net the state has woven about him, naturally fear the result. There is often a combination of circumstances, which a man innocently walks into, that he may not be able to explain satisfactorily to a jury, and yet never have thought of the commission of a crime. Under such circumstances, he can and should seek to take advantage of this law, and no improper motive should be ascribed to him for so doing; for, if it is permitted to be done, the innocent would be denied the privilege of asking the benefit of the law. One charged with crime naturally fears the result of a trial, although he may feel and know he is guilty of no wrongdoing; and had appellant excepted to the remarks and requested the court to instruct the jury that the remarks were highly improper, and then presented a charge instructing the jury not to consider such remarks, and the court had refused to give such instruction, we would not hesitate to reverse the case because of the improper remarks. For it is the duty of each and every one connected with the trial, the trial judge, the prosecuting attorney, and the attorney representing the defendant, to use their best endeavors to see that a fair and impartial trial is had, and each issue fairly presented. Appellant’s counsel must be diligent, as well as the others; for, if he is not, he cannot well complain of the matter after it is too late for it to have been remedied, when he could have had it remedied by prompt action.

No exception was reserved to the charge as given, no special charges were requested, and, as there was no error in the rulings of the court in admitting evidence, the judgment must be affirmed.

DAVIDSON, J.

(dissenting). When the opinion was handed down affirming this judgment, I noted a disagreement to that af-firmance. I do not propose to enter into any lengthy discussion of the matters involved, but in a general way to state a few reasons why I cannot agree.

This record makes it manifest, as does the opinion, that a great deal of the testimony introduced — and this over the objection of the appellant — were remarks of appellant’s wife and conversation had by her with other parties in his absence. This was introduced by the state as original testimony and for the purpose of showing a conspiracy between appellant and his wife. The wife cannot be used as a witness against her husband in Texas in cases of this character. Under all of the authorities that have been called to my attention, the declaration of the husband or wife cannot be used against the other to show a conspiracy, or to make out the state’s case. In the Cook Case, 22 Tex. App. 511, 3 S. W. 749, there was some testimony introduced and the ruling of the trial court sustained on the theory that it was res ges-tae; but an examination of that case will show clearly this case does not come within that rule. Cook and his wife were acting together at the time of that homicide, actually personally engaged in it, and the acts and declarations of each made at the time were held to be admissible. I do not question the soundness of the Cook Case, and, if these declarations of the wife and her husband would come within that rule, I should not have disagreed here. But here the presence of the husband is excluded and, in fact, at the time she made these statements prior to the shooting, the meeting of the assaulted party with his wife was not known to defendant, nor did the matters occur until appellant’s wife discovered the presence of the assaulted party and went to him and had those conversations which were introduced in evidence. The meeting between appellant’s wife and the assaulted party was purely accidental and unknown to appellant. I do not care to follow this thought further.

Another proposition germane to this, which I am convinced is correct, is that there cannot be a conspiracy between the husband and the wife as the term “conspiracy” is understood in law. That they may be principals in a criminal case may be conceded. This would depend on the facts. At common law the wife, of course, could not be a conspirator with her husband. In Texas the statute provides that, where an offense is committed by the wife in the presence or with the connivance of the husband, the wife is punish: ed differently from her husband. This is nót the rule as to conspirators. They are all punished alike. A conspiracy is a consummated offense and complete within itself, and the conspirators acting together are conspirators, whether the object of the conspiracy is ever executed or not. This is true by the express definition of conspiracy in our Penal Code. So under our statute, and under the common law, both, a wife cannot be a conspirator. This does not change the rule that she may be a principal subject to the statutory provision that her punishment may be different from that of her husband. It occuk; to me this was recognized in this case because the wife was not prosecuted. Under any view, therefore, the exceptions to the introduction of these declarations of the wife against her husband, used by the state over the protest of the defendant, are well taken and should have been sustained. I do not care to cite authorities to sustain these propositions further than above mentioned.

There are some other errors in the case, but I decided to make these few observations with reference to this phase of the case. I cannot therefore believe that this conviction ought to have been sustained. The judgment ought to have been reversed, and the cause remanded for trial in accordance with the principles of law. 
      <&^>ir&r other eases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes
     