Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ninety-nine years.
The evidence is unusually voluminous. A sufficient statement of the case for the disposition of the case is in brief as follows: On the night of and preceding the homicide there was quite a crowd of people in and around a certain business house, where there was considerable drinking. Some of the parties were very much intoxicated. Deceased was drinking to a considerable extent. During the night, as contended by the State, appellant, Dorsey and Hatcher induced deceased to go with them to an outhouse for the purpose of engaging in a gambling transaction, and his money was either won by the parties or taken from him by force before his death, or taken from his body after death. Appellant's confession was admitted, over his objection, to the effect: That while at the outhouse deceased used some very insulting language towards appellant; that this brought on a personal difficulty between them, in which appellant choked deceased and struck his head against the floor; that subsequently appellant, Hatcher and Dorsey left the outhouse, leaving the deceased asleep upon the floor; that when appellant and his comrades left they went to the residence of Dr. Bridge, for the purpose of having a wound upon appellant's arm dressed; that while there he left $25 with the physician. Deceased had some $50 or $60, some of which corresponded in size with the bills that were left by appellant with Dr. Bridge. Under this confession, as well as under the statement of the accomplice Dorsey, made to Ben Hall, deceased was alive at the time they left the outhouse, where his body was subsequently found partially burned. These parties left this outhouse about 4 o'clock, arriving at the residence of the physician about 4:15 or 4:20, and remained at the doctor's office until in the neighborhood of 6 o'clock, when they left. After going a short distance, appellant became so much intoxicated that he fell into a ditch, with his heels at the top of the ditch and his head in the bottom, where he passed into a drunken sleep and stupor from which he was aroused by some of the witnesses the following morning. About 5 o'clock in the morning, as near as the witnesses could place the time, a light was seen in an outhouse where the body of deceased was subsequently found. The theory of the State was that there was a conspiracy formed by Dorsey, Hatcher and appellant *Page 50 to secure the money from deceased, and it was in pursuance of this conspiracy that death occurred, as well as the burning of the body of deceased. If the confession of appellant be true, or be believed by the jury, it would hardly be contended that appellant did the killing especially for the purpose of robbery. This evidence was placed before the jury by the State. If, after the beating and choking of deceased by appellant, and at the time of their leaving the outhouse, deceased was alive, appellant would not be guilty of homicide under any theory of the State. If appellant beat and choked deceased, from which he subsequently died, this arose from no theory of robbery or theft of the money of deceased, and from no theory of murder in the perpetration of robbery or theft, but it grew out of a personal altercation brought about by the insulting conduct and language of deceased towards appellant. The law in regard to this state of the case was not given, but should have been. If there was a conspiracy to rob and murder deceased, or to rob or murder him, and the killing did not occur in pursuance of either phase of such conspiracy, but was the result of the fight between appellant and deceased on account of the insulting conduct mentioned above, it would very clearly suggest that appellant could not be guilty of murder in pursuance of the conspiracy to rob or murder. If in fact, or if the jury believed from the evidence, that deceased was alive at the time appellant left the outhouse, and that his death was due to any other cause than the act of defendant, he would not be guilty of any phase of homicide. These matters were suggested by the evidence and should have been distinctly charged upon by the court.
Exception was reserved to the thirty-third section of the court's charge, as being a charge upon the weight of evidence in regard to the conspiracy and the assumption of the fact that the conspiracy had been shown. This charge is in substance, and in almost exact language, the same as that for which Hudson's case was reversed at our recent Dallas term. See Hudson v. State,43 Tex. Crim. 420, 4 Texas Ct. Rep., 167. It is unnecessary to go into a discussion of this charge further than to refer to the above case.
There are other serious questions suggested for revision, but as they will not arise upon another trial as presented by this record, we pretermit a discussion of those matters. However, we would say, in regard to the motion to change the venue, that, if the testimony upon another trial is as shown by this record, we are of opinion that the venue should be changed. It is seldom the case where the testimony is stronger, tending to show prejudice against the accused, than as shown by the record here. The application for continuance may not be presented upon another trial; and if so, it will come in different form than as presented by this record.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 51