At a former term of the court, the judgment herein was affirmed without reference to the statement of facts, on the theory that the statement of facts could not be considered, having been filed after the time allowed by the court, to wit: twenty days. Upon a review of the matter we are satisfied now that that conclusion was erroneous. The judgment of the court allowed twenty days, whereas the Act of the Thirtieth Legislature authorized thirty days in which to file statement of facts. The theory upon which the affirmance was had was that thirty days was allowed appellant, but that it did not compel him to take that time if he saw proper to take less time, and having obtained an order for that purpose, he would be confined to the time requested by him and set forth in the judgment. A review of the question convinces us that that conclusion was erroneous. We now follow the rule announced by the Court of Civil Appeals in Garrison v. Richards et al., 107 S.W. Rep., 861, and St. Louis Southwestern Ry. Co. of Texas v. Nelson, 108 S.W. 182. We are of opinion, upon a review of these cases, that they announce the correct doctrine. The judgment of affirmance, without reference to the statement of facts, is set aside and the case will be tried upon its merits.
A sufficient statement of the case will be found in the former appeal as reported in Dobbs v. State, 51 Tex.Crim. Rep.. *Page 583
Appellant sought a continuance of the case on account of the absence of quite a number of witnesses. This was overruled and process ordered for the absent witnesses except Henry Honzell, who was alleged to reside in Parmer County. Process was served on all of the absent witnesses and they were brought into court, except Henry Honzell. By him it was proposed to be shown that on the evening of the homicide appellant and his father were en route from their residence to Cypress Creek on a fishing excursion; and such was the statement made by them to him, when they met him just before the homicide. This is the second application. The testimony of the absent witness was cumulative. It was the theory, in fact, of the defendant that the meeting between himself and his father on one side and deceased on the other, was purely accidental; that they started on a fishing excursion to Cypress Creek, and the deceased was returning from a neighboring village when they happened to meet him (deceased) and the difficulty ensued. This was abundantly shown by their witnesses. There was no error in refusing this application.
There are several errors assigned upon the charge of the court. We are of opinion there is not sufficient merit in any of these to require a reversal. Among others, it is seriously contended that the court's charge on conspiracy is on the weight of the evidence. This is as follows: "If you believe from the evidence, beyond a reasonable doubt, that the defendant and M.B. Dobbs agreed between themselves, or conspired together to kill J.T. Mitcham, and that in pursuance thereof defendant killed him, then I charge you, that any act or declaration of M.B. Dobbs in furtherance of said common purpose done or said by him in the absence of the defendant, and which may have been introduced in evidence in this case, is legal evidence in this case against defendant and may be considered by you in finding your verdict but if the evidence fails to satisfy you, beyond a reasonable doubt, that such agreement or conspiracy existed, then such acts or declarations of M.B. Dobbs, done or said in the absence of the defendant, is not legal evidence in this case against the defendant and you will give them no consideration whatever but will wholly disregard them in finding your verdict in this case." Contention is made that this is upon the weight of the evidence. We can not agree to this contention. It leaves it for the jury to determine whether or not there was a conspiracy existing or an agreement to kill the deceased, and that point being reached favorably to the State, then they might consider anything said or done by M.B. Dobbs which was in furtherance of the common design. Under our decisions we are of opinion that this is correct and does not assume any fact against the accused, but leaves it to the jury to determine whether or not there was a conspiracy or agreement to do what was done.
Criticisms also are directed against the court's charge limiting *Page 584 the impeaching evidence in regard to certain witnesses. We are of opinion that the objections to these charges are not well taken. The court correctly limited the impeachment to the credibility of the attacked witness and the weight to be given to the testimony of such witness.
There is a bill of exceptions reserved to the introduction of the testimony of Mrs. M.B. Dobbs, mother of appellant, and wife of the codefendant M.B. Dobbs, as given by her on the trial of her husband previous to the trial of appellant. As this bill of exceptions is explained by the trial judge, we are inclined to the opinion that there is no error. Her testimony covers several pages in the statement of facts and is identified sufficiently by bill of exceptions. The court in explaining the bill says, as follows: "After Mrs. Dobbs was examined the defendant then offered the whole of her evidence as taken down by the official court reporter in the trial of M.B. Dobbs. The State offered no objection but consented, and the defendant read all of her evidence to the jury including that part in this bill of exception. The State never did offer any of it." If we understand this bill correctly, the district attorney asked some questions of the witness in regard to her testimony on the former trial of her husband. These questions were apparently not answered as explained by the court. The defendant then offered all of the stenographic report of Mrs. Dobbs' testimony given on the former trial, which was admitted. As this bill presents the matter, we do not see that appellant can complain. It is correct, that the State can not use the wife against the husband, nor can the State use the wife of one of the defendants against a codefendant while her husband is still under indictment. This testimony, however, came at the instance of the defendant.
We have not reviewed the criticisms of the charge seriatim, but in view of the authorities and the previous trial of appellant, and of his codefendant M.B. Dobbs, both of which are reported in Dobbs v. State, 51 Tex.Crim. Rep.[51 Tex. Crim. 113] and 629, it occurs to us appellant has had a sufficiently legal trial to warrant an affirmance of the judgment, and it is accordingly so ordered.
Affirmed.