ON REHEARING. November 1, 1905. The judgment was affirmed at the Austin term, and now comes before us on motion for rehearing.
In the original opinion we discussed at length the doctrine of conspiracy, involving the charge of the court and the admission of testimony and it is not deemed necessary to again review that question. However, *Page 248 appellant has seen fit to criticise the court's citation and discussion of the case of Cox et al. v. State, 8 Texas Crim. App., 254. In the original opinion we copied an excerpt from that opinion, in which the court stated, in effect, that much difficulty would be avoided by keeping in mind the statutory provisions with reference to principals. The court there stated that when the proof shows two persons were acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators; and that the previous acts and declarations of each or any such principal offender, in pursuance of the agreed plan, and tending to throw light upon it, or the motive or intent with which it was committed is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted and tried jointly or separately. In commenting on what was stated, appellant in his motion intimates that the court did not act on this principle at all, but excluded the declarations of Meador, testified to by witness Kilgore. We understand the court did exclude a part of Kilgore's testimony; that is, that portion which related to a conversation which took place prior to the killing of Geo. Brazzell on the way to the house of Hardin. Kilgore testified to another conversation between himself and Meador after they left, Hardin's house. We must confess it is difficult to make a distinction between the testimony of this witness as to what was said before arriving at Hardin's house, and what was said after leaving there. However the court drew a distinction, using the following language: "But it is said that the declarations of Meador simply showed a willingness or intention on his part to do certain things, without showing that any one else had agreed to act with him at that time. This objection is only applicable to the expressions used by Meador in the first conversation with Kilgore, on the way from Cox's to Hardin's. Upon mature reflection, we are of opinion that this testimony was not admissible under any rule of evidence, but was directly in conflict with all the known and recognized rules. The general rule is that, `the evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design, — what was said by them before or afterwards not being within the principles of admissibility.'" The court further says: "With regard to the two other objections to the testimony of Kilgore as to his conversation with Meador, which we have pointed out above, we deem it only necessary to say that, as urged, the objections are not tenable. `If two or more combine to do an unlawful thing, and the act of one, proceeding according to the common plan, terminates in a criminal result, though not the particular result intended, all are liable.'"
Now, we understand from the opinion in said case, that in proving a conspiracy to commit a crime, proof that two parties acted as principals in the commission of said crime, furnishes proof of the common intent to do that crime. If there is testimony tending to show that a *Page 249 conspiracy must have been formed sometime before, in pursuance of which the crime was committed, the acts or declarations of either of said parties, in furtherance of the common design, though made in the absence of the other, would be evidence against both. We think there is logical reasoning in the rule, if one party commits a crime, and this is shown to have been upon motive, and another party is shown to have assisted and cooperated with him in its actual perpetration, but no motive is shown as to the latter, the motive of his co-principal will be attributed to him. In this case, as stated in the original opinion, the court submitted the issue of conspiracy to the jury, and instructed them, if this conspiracy was not shown, that they would not regard the acts and declarations of other alleged conspirators introduced in evidence, in the absence of appellant. And the court further in this charge, it appears to us eliminated all of the harm that could come from the introduction of such testimony in the absence of any conspiracy shown, to the motive and intent which may have actuated the party making the declaration. Furthermore, it may be stated in the opinion of the writer that recent authorities have gone to a greater extent in admitting this character of testimony than the Cox case and others cited by appellant. See Stevens v. State, 42 Tex.Crim. Rep., and Hudson v. State, 43 Tex.Crim. Rep., and see also Smith v. State, 21 Texas Crim. App., 96, and Harris v. State,31 Tex. Crim. 411. In said cases it was held, that on a trial for murder, where a conspiracy is shown, the acts and declarations of co-conspirators are admissible to prove the common design, purpose and intent of all the conspirators, whether such acts anddeclarations were made before or after the formation of theconspiracy, or whether the same were made before the defendant on trial entered into the conspiracy. Where a party knowingly enters into a conspiracy after its formation, he is held to have adopted all the previous acts, declarations and designs of the conspirators, previously made, which tend to illustrate the common design, purpose and intent with which they all acted. While the writer believes these cases go too far, yet they have not been overruled, and clearly the greater portion of the testimony objected to by appellant is admissible under said decisions, and that which may not be admissible was so limited by the court as to destroy any harm that might otherwise have resulted to appellant.
Appellant objected to the following charge, and insists on a reversal on that account: "If you believe defendant entered into a conspiracy with T.E. Smith and Catherine Smith, or either of them, etc., then you will consider the acts and declarations of T.E. Smith, but can consider them only for the purpose of illustrating the motive, purpose and intent of the parties, forming the conspiracy, if you conclude from the other evidence in the case, that such a conspiracy was in fact formed. You are further charged that unless you find beyond a reasonable doubt that the conspiracy was formed, and that Addison Smith (defendant) was a party thereto, then you will exclude from your consideration *Page 250 all the acts and declarations, if any, of T.E. Smith and Mrs. Catherine M. Smith, from your consideration in this case." Appellant insists that this charge is erroneous, in that it told the jury, if appellant entered into an agreement or conspiracy with either T.E. Smith, or Mrs. Catherine Smith to kill the officers, in resistance of the writ of possession, then they could consider the acts and declarations of T.E. Smith against appellant. That is, if appellant formed a conspiracy alone with Mrs. Catherine Smith they could consider the acts and declarations of T.E. Smith against appellant, with whom he had not formed a conspiracy. Of course, this charge is subject to the criticism aimed at it by appellant, still we are unable to see how it could have injuriously affected him, for the conclusion is irresistible if he entered into a conspiracy with one of them, he entered into a conspiracy with both. In this connection we call attention to the charge asked by appellant on this subject, and given by the court, as follows: "You are charged that mere knowledge of the existence of a conspiracy on the part of the defendant does not make him a party to such conspiracy, but the evidence must show beyond a reasonable doubt that the defendant not only knew of the conspiracy, but participated in such conspiracy, and if you do not so find from the evidence, you will not consider the evidence of acts and declarations of T.E. Smith and Mrs. Catherine Smith, but disregard the same in your consideration of the case." Looking to the testimony and to the charge of the court in connection with the requested charge we cannot see how the jury could have been misled to the prejudice of appellant on this subject of conspiracy.
Again in his motion for rehearing, appellant calls our attention to the following charge: "If you believe from the evidence beyond a reasonable doubt that the defendant, either alone or acting with others, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without an adequate cause, and with intent to kill, did shoot with a gun, and thereby kill J.B. Grubbs, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period not less than five years." It is insisted that this charge does not even tell the jury that the act must have been unlawful, and omitted to tell them that it must have been done with implied malice. That is, it simply instructs the jury, if appellant in a sudden transport of passion, aroused without an adequate cause, with intent to kill, did shoot and kill deceased, he would be guilty of murder in the second degree. It is urged that this definition is entirely consistent with a lawful killing in self-defense. In this regard we are cited to a number of authorities, which are invoked to sustain appellant's contention. In Harrison v. State, 83 S.W. Rep., 703, there was no charge on manslaughter and adequate cause was nowhere defined. In Ray v. State, 81 S.W. Rep., 737, there was no charge on manslaughter and adequate cause was not defined, and the court found other vices in the charge. *Page 251 In Spivey v. State, 77 S.W. Rep., 444, the conviction was for murder in the first degree, and the court held that the charge was so framed, as that the jury might believe, if he did not act under sudden passion they could not convict him of murder in the second degree, but were bound to find him guilty of murder in the first degree. It was further held, that the reasonable doubt was shifted and also that no charge was given on manslaughter, from which the jury might find the definition of adequate cause. In Pollard v. State, 73 S.W. Rep., 953, there was no charge on manslaughter and no definition of adequate cause, and it was held in a prosecution for murder, where the court charged the jury that defendant would be guilty of murder in the second degree, if he shot deceased in a sudden transport of passion, aroused without adequate cause, in such case it was error not to give a charge on manslaughter, defining adequate cause. It is not necessary to review the other cases cited. So far as we have been able to discover, none of them are any more in point than those reviewed. Here there was a charge on manslaughter, and adequate cause defined, and immediately following the charge complained of, the court gave this charge: "If you believe from the evidence beyond a reasonable doubt that the defendant with a deadly weapon, in a sudden transport of passion, aroused by an adequate cause, as the same has hereinbefore been defined, did unlawfully shoot with a gun, and thereby kill J.B. Grubbs, deceased, as charged in the indictment, then you will find defendant guilty of manslaughter, and assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than five. Now, it occurs to us that while it may be conceded that the charge in question should have been more full and explicit, yet that the jury in considering the definitions given of murder on implied malice and manslaughter could not have been misled. In this connection it may be observed that the court not only gave a charge on self-defense, which authorized the jury to acquit, if they believed the officer first assaulted appellant's mother, and from his (appellant's) standpoint put her in danger of life or serious bodily harm, he was authorized to slay deceased regardless of any conspiracy. Furthermore, appellant's requested instruction was given to wit: "You are charged that even though you may find from the evidence that there had been a conspiracy between the defendants and others to resist the officers, and you further find from the evidence that the killing was not done in furtherance of such conspiracy, but was done by defendant in the necessary defense of his mother, under the law as given you in charge, then you will acquit the defendant." With all these charges before the jury they found appellant guilty of murder in the second degree. Murder in the second degree had been defined by the court and a full definition given of implied malice. It is said, however, that the jury were not even told that the killing must be unlawful. They were told that, "if the killing was upon passion aroused without adequate cause, etc." If the killing was upon passion, and this passion was not even aroused *Page 252 by adequate cause, which was defined by the court in the charge on manslaughter, it was necessarily unlawful, and the jury could not have confused this charge with either the charge on manslaughter or self-defense to the detriment of appellant. The testimony amply authorized them to find appellant guilty of murder in the second degree.
As to the charge on reasonable doubt, that was sufficiently presented by the court. A charge was also given the jury applying the reasonable doubt as between the degrees of murder and manslaughter. This was sufficient. It is not necessary to discuss other matters suggested and ably argued in appellant's brief, as they were reviewed in the original opinion.
Motion for rehearing is accordingly overruled.
Overruled.