Appellants have filed a motion asking the court to revise and reform its opinion herein. It is unnecessary to state the particulars thereof.
We think the appellants have misunderstood the opinion. In the first part of it we merely stated the theory of the State, so as to try to show the application of the questions determined and decided thereby — not that that theory is a fact. It may or may not be.
We think it can not be gathered from the opinion that we held that the deceased, Watts and Havard, were at first parties to the original conspiracy between E.E. Sapp and another at the time it was made, if it was. And certainly not that they were parties to any conspiracy to have themselves killed to prevent their testifying or otherwise as to their being hired to kill, and killing Mrs. E.E. Sapp. Nothing of the kind was meant or intended by the opinion. If they became *Page 371 parties thereto, it was when E.E. Sapp hired them, if he did, to kill Mrs. Sapp. The killing of Watts and Havard, or either of them, if by appellants, was a later incident to and made necessary in order to carry out, under the theory of the State, the original conspiracy entered between E.E. Sapp and another or others, which was to the effect, as claimed by the State, that E.E. Sapp would marry a rich widow, manage to get her property by a will or otherwise, then make way with her by killing her, or otherwise, and divide the property acquired from her between the conspirators. Under the State's theory, the original conspiracy has never yet been ended or consummated. It can not, and will not, be until E.E. Sapp gets the balance of his wife's estate under her will and divides it with his conspirators. It would not be essential to make Watts and Havard parties to said claimed original conspiracy, that they should get any specific portion of Mrs. Sapp's property for killing her — the fact, if so, that they were hired by E.E. Sapp, and to be paid by him, to kill her, might be sufficient to make them parties thereto, to carry out one essential part — kill her.
Nor do we think it can be gathered from the opinion that we held that Lou Sapp was a party to said alleged original conspiracy before or at the time Mrs. Sapp was killed. His entry into the conspiracy, if he ever did, was at the time he assisted E.E. Sapp, if he did, in corralling Watts and Havard, taking them into the big thicket, and killing them, or helping E.E. Sapp to do so. The testimony might show that he did not know that Mrs. Sapp was to be or had been killed until some short time after she was killed, and perhaps prior to that time he did not even know that E.E. Sapp had married her. It may be that Lou Sapp was not to get any of Mrs. Sapp's property, nor any special pay, or specific amount, for what he did, if anything, in the killing of Watts or Havard. However, according to the theory of the State, he became a party to the conspiracy by entering into an arrangement with his brother, E.E. Sapp, and aiding and assisting him, if he did, to kill Watts or Havard, and thereby enable E.E. Sapp to consummate his original conspiracy and succeed in ultimately getting his wife's property and dividing it, and it was on this theory that the opinion was predicated.
We can not understand how the opinion of this court can ever get to a jury. It is intended for the guidance of the judge in the trial, and should be for his guidance, so far as the questions decided are concerned. As stated in the original opinion, we have not discussed nor commented on the evidence. We have merely stated the different theories, where applicable. Of course, we understand that appellants deny any and all conspiracies at any and all times, and they deny the killing of Mrs. Sapp other than as an accident, and they deny that they killed either Watts or Havard at any time or for any purpose, but the State contends otherwise, and it is the duty of this court, so far as it can, to decide the legal questions on the various contentions *Page 372 of the different parties, and this, and only this, is what we have undertaken to do.
As we understand, it has never been held and is not necessary that an admission or declaration of a co-conspirator had to be communicated to the other conspirator against whom it is introduced before such admission or declaration would be admissible. The law is, as we understand it, that such declarations of a co-conspirator are admissible against all parties to the conspiracy, whether they heard it or it had been communicated to them or not.
The testimony of the various witnesses as to the declarations Watts and Havard made to them as they testified, which appellants objected to, shown by their bills, was held admissible on two grounds; one, particularly, to show motive by appellants for killing Watts; the other, as admissions or declarations as co-conspirators to that part of the conspiracy, if so, to the killing of Mrs. Sapp.
We refrain from discussing or even stating the testimony which would tend to show and authorize the jury to believe that both E.E. Sapp and Lou Sapp knew of the statements by Watts and Havard at different times that they or Watts had been hired by E.E. Sapp to kill Mrs. Sapp, etc. The many different times and places and circumstances where they are shown to have made such statements and the supervision and control of them by the Sapps about this time and shortly and immediately before Watts was killed, seems to form a chain of circumstances that would authorize a jury to find they did know and had notice of the declarations by Watts and Havard, notwithstanding appellants both denied any such knowledge or notice. All that was for the jury. It is unnecessary for us at this time to say whether or not all this evidence was of sufficient force to establish their knowledge or notice, as claimed by the State. The jury must pass upon that question.
The opinion might not have made it clear that the theory of the State was that E.E. Sapp hired not only Watts but Havard, too, to kill Mrs. Sapp, although the shot that killed her was fired by Watts alone. We take it that the contention of the State was that both of these parties were hired by Sapp to kill her, and both of them as to killing her would have been principals. However, we do not state that that is a fact. We merely state what we understand the contention of the State to be. Of course, appellants deny all of this, and a jury may believe their side ultimately, and not that of the State.
We have thought it proper to thus explain, because of appellants' motion. It is overruled.
Overruled. *Page 373