The appellant, Calvin and Claude Boles, were jointly indicted with L. D. Cammack and Elbert Boles of the offense of murdering W. R. Cook, and said appellants, after severance, were convicted in the District Court of Shelby County of manslaughter, and Calvin Boles' punishment assessed at five years, and Claude Boles' punishment assessed at two years in the penitentiary.
This court refused to consider the statement of facts in this case at the last term, on account of same not being signed by the trial judge; since which time a proper showing has been made which authorized us now to consider same.
It was the contention of the state that all of the defendants named in the indictment had entered into an agreement or conspiracy to kill the deceased, under the pretext that the deceased and the sister of said Cammack, wife of Calvin Boles, had been unduly and criminally intimate, and all of them were present and acting together at the time of the homicide.
It was the contention of the appellant Calvin Boles that his wife had informed him the night preceding the morning of the killing that she had carnal intercourse with the deceased, and believing said statement to be true, he killed the deceased upon the first meeting thereof; and also by his testimony injected into the case the issue of the necessary defense of his brother, appellant Claude Boles. The record discloses that at the time the appellant Calvin Boles shot and killed the deceased, Claude Boles and the deceased were engaged in a fight, and the latter had called to his wife to bring him his gun, and that she was approaching the scene of the difficulty with a gun just before the shooting occurred.
It was the contention of Claude Boles that he knew nothing of the intention of Calvin Boles to kill the deceased, and had no understanding with any of the other parties or knowledge to the effect that they intended to kill the deceased, but that he incidentally went to the scene of the homicide without any knowledge of Calvin Boles intending to come or be at said place. The record further discloses that after all the defendants, together with the deceased, had assembled at the scene of the homicide, Claude Boles and the deceased had a dispute over the deceased's going to the residence of Calvin Boles in his absence, which culminated in a fist fight between them, during which time the deceased was killed by Calvin Boles, as above stated. *Page 637
There are many questions raised by appellants in their brief, but we will only discuss such questions as we think demand our attention, and which are likely to arise upon another trial in the court below.
Bills of exceptions 1 to 3 inclusive complain of the action of the court in refusing to permit the appellants to exercise sixteen peremptory challenges. Said bills show that appellants had used fifteen challenges and attempted to exercise their sixteenth challenge on the last two jurors selected, which the court refused to permit as shown by his qualification to said bills, because he overlooked the fact that two defendants were being tried instead of one, and because his attention was not specifically called to same, and no injury was shown to appellants. Art. 691, Vernon's C. C. P. states:
"In capital cases, both the state and defendant shall be entitled to fifteen peremptory challenges; and, where there are more defendants than one tried together, the state shall be entitled to eight peremptory challenges for each of said defendants; and each defendant shall be entitled to eight peremptory challenges."
We think the action of the learned judge in this instance was clearly erroneous, and that under the law it was not incumbent upon the appellants to show injury, but that when they are deprived of this right to exercise their full number of peremptory challenges, there is but one thing for this court to do, and that is to reverse the case.
Complaint is also urged by bill of exception No. 6 to the action of the court in refusing to permit Brooksie Boles, wife of the appellant, Calvin Boles, to testify to a conversation between her, her husband and her brother, L. D. Cammack, on Sunday night prior to the homicide the following Tuesday morning, in which her brother agreed to see the deceased and talk to him, and try to get him to desist from visiting the house and premises of Calvin Boles in his absence. We are of the opinion that this testimony was clearly admissible in rebuttal of the state's theory of a conspiracy.
By bill of exception No. 9 complaint is made to the action of the court in permitting the state to interrogate the appellant Calvin Boles, on cross examination, relative to a certain church trial in which he, the appellant, admitted that one Bib Bounds had informed him, appellant, that there had been improper relations between appellant's wife and one Whitten. We are of the opinion that there was no error in the admission of this *Page 638 testimony, and that same was admissible for the purpose of showing the condition of appellant's mind over the alleged improper relations between his wife and the deceased. Specific acts of immoral conduct of the wife, known to the husband, are admissible in this character of cases. Bozeman v. State, 85 Tex.Crim. App. 657; 215 S.W. 299.
For the errors above discussed we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Court of Criminal Appeals and approved by the court.