It is the State's contention that the bill of exception found at page 104 of the transcript, and upon which the opinion of reversal was based, is insufficient. The bill does contain much evidence given by the witness Mathews which was properly admitted, and the State's contention would unquestionably be correct if the *Page 396 trial judge's explanation to the bill did not in our opinion make it clear what part of Mathews' evidence was claimed to have been objectionable. The qualification makes it reasonably clear, we think, that it was the conversation between Mathews and Lynn Stevens to which objection was being urged, one objection being that it related to matters and things occurring subsequent to the homicide, therefore after the conspiracy had terminated. The State built its case around an alleged conspiracy of which Lynn Stevens was claimed to be the moving spirit, and had connected appellant and others with him in the killing of Charles Stevens. Appellant, without objection from the State, had injected an issue as to the sanity of Lynn Stevens, and the court says he admitted the conversation between Lynn Stevens and Mathews on the issue of Lynn Stevens' sanity, and that he so stated at the time it was admitted. There is no statement in the bill that the jury was orally told for what purpose it was being admitted. It is doubtful if the injurious effect of the objectionable testimony could have been obviated by such instruction. The question of Lynn Stevens' sanity was a collateral matter, we judge, as no instruction on the subject is found in the court's charge. The conversation between Mathews and Lynn Stevens the next day after the killing, coupled other unnamed parties with Lynn Stevens in the killing. It was but natural that the jury should appropriate it against appellant under other facts before them. It would be too speculative, we think, to say the evidence could have done appellant no harm.
The motion for rehearing is overruled.
Overruled.