When the opinion was handed down affirming this judgment, I noted a disagreement to that affirmance. 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 can not 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 can not 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 can not be used against the other to show a conspiracy or to make out the State's case. In the Cook case, 22 Texas Crim. App., 511, there was some testimony introduced and the ruling of the trial court sustained on the theory that it was res gestae; 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 can not 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 punished differently from her husband. This is not 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 *Page 426 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 can not 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 occurs 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 can not, 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.