When the opinion in this case was delivered I agreed to the reversal, and thought then and think yet there were quite a number of questions of a reversible nature besides those upon which Presiding Judge Prendergast reversed the judgment. The case is quite an interesting one and fully remarkable in some respects. The indictment contains two counts, one charging appellant with being an accomplice to the homicide, Elie Pointer being the principal in the killing; the other count charging that appellant was an accessory after the fact. Of course, this would render the case a very complicated one. There might be and perhaps was testimony introduced which tended to sustain or was offered to sustain the charge against appellant as being an accomplice, which was not admissible against him as an accessory, and there was testimony introduced against him as accessory, which could not be used against him as an accomplice. The charge does not sufficiently guard these matters nor was it in any way properly guarded against using this and other testimony improperly against the accused, but inasmuch as the conviction was on the count charging him as being an accomplice, the count with reference to his being an accessory passes out of the case, and doubtless will be properly guarded by the trial judge upon another hearing before the jury.
There was a very lengthy document introduced against appellant which is claimed to have been a confession written out and signed by Elie Pointer long after the homicide and while he was in jail. Pointer had been convicted and sent to the penitentiary for twenty years, and was in the penitentiary at the time of the trial of appellant. I am led to believe that he had been tried and convicted as a principal upon the theory that there had been a conspiracy between himself, appellant and *Page 60 Mrs. Gosnell, though this is not clear. The State's case was dependent upon this theory against this appellant. Unless appellant was an accomplice, the State had no case against him. The State's case was dependent upon the fact that appellant was not present, and that he did not participate in the killing. This confession was quite voluminous, and went fully into details from Pointer's standpoint of the facts and circumstances connecting appellant, himself and Mrs. Gosnell with the conspiracy prior to the killing. Much of it, and in fact it seems the larger part of the confession, was directed at the part that he says appellant took in the conspiracy together with Mrs. Gosnell, giving many details, facts, circumstances, occurrences and conversations, etc., in which he states appellant participated. The court limited Pointer's confession in his charge to the jury to be used by them only against Pointer. He did not instruct the jury that they could not use it against the appellant, otherwise than by giving the general charge confining the jury in their consideration of the confession to Pointer. I am clearly of the opinion that the jury should have been guarded against using the expressions of Pointer connecting appellant with the matter, if the sole purpose in introducing the confession was to connect Pointer with the killing, using this as a means of showing that he was the principal in the homicide. Pointer stated also that he killed deceased Gosnell in self-defense. The court gave a general charge on self-defense, but did not limit it or apply it to the facts of this case. The jury should have been pointedly instructed that if Pointer killed the deceased in self-defense, they would not use the evidence of the conspiracy set out in Pointer's confession. Again, inasmuch as the State used Pointer's confession connecting the defendant and giving details, they should have been pointedly further instructed that the burden of proof was on the State to show that Pointer did not kill the deceased in self-defense as he stated, and that in no event could they use Pointer's statement against appellant connecting him with the conspiracy or the homicide. While it may be, under the authorities, that the confession of Pointer might be used to show that he killed the deceased, it could not be used to connect the defendant with it in any way. The acts, declarations or statements of a co-conspirator can not be used against another co-conspirator if made after the termination of the design of the conspiracy. This is so under all the authorities. This matter underwent a very thorough examination in Cox v. State, 8 Texas Crim. App., 254. It is the universal rule in Texas by all decisions of this and all the courts. I express the opinion as being correct here now, that only that part of the confession which connected Pointer with the killing should have been permitted to go to the jury, and all that he said in his confession with reference to appellant being connected with the conspiracy should not have been permitted to go to the jury. Some of these matters were urged upon the trial and are found in the record in objections not only as to the testimony but as to the charges given and refused. I do not care to go into any detailed statement of these matters. The trial court *Page 61 will understand my views upon the matter without going into those details.
Another question in this connection is, that subsequent to the making of the confession by Pointer, appellant proposed to show that Pointer admitted that his confession was a falsity. I do not purpose to repeat the offered testimony. That is the substance and concrete conclusion of the offered testimony. Pointer also stated that he killed deceased for the purpose of robbery, and that he expected to get six hundred dollars from him, giving facts and details, etc. This testimony ought to have been permitted to go to the jury in the attitude in which this matter was presented. My brethren seem to take the view of it, in the opinion written by our Presiding Judge, that these were self-serving declarations on the part of the defendant, and quote authorities to show that self-serving declarations could not be used to contradict Pointer's confession. In my judgment they mistook the whole issue and did not comprehend the question made by appellant and his counsel. If these had been declarations of the defendant himself to meet his (defendant's) confession, there might have been some cogency in the view advanced by the majority opinion, but Pointer's confession was used as evidence against the defendant and stood in the case against him. The statements of Pointer were not eliminated as to the defendant by the charge or by any sort of means on the part of the trial court; all went to the jury, and taking as a basis this confession, other evidence was permitted to be introduced to corroborate Pointer's confession. Under this view of the matter and as it was presented to the jury, defendant clearly had the right to show Pointer's subsequent statement was false. These statements impeached Pointer's confession and were admissible for that purpose. Pointer's confession was very damaging to go before the jury unchallenged and uncautioned as to its effect and being before the jury, appellant had a right to show, in any way he could, that Pointer had made false statements. This could be done by Pointer's admission that his confession was false. The delicacy of matters of this sort will be readily perceived by a legal mind in a complicated case where the guilt of the principal as well as the guilt of the accomplice must be shown during the same trial. Testimony admissible only against the principal should not be used against the accomplice. If Pointer was not guilty of killing deceased in accordance with a conspiracy, appellant could not be responsible for the homicide, nor would he be responsible unless the conspiracy was shown between Pointer, appellant and Mrs. Gosnell. This was the basis of the prosecution, and necessarily must be the basis of a conviction. If Pointer killed the deceased in self-defense, or for the purpose of robbery, and not at the instigation of appellant, then appellant would not be guilty; and while under the cited authorities Pointer's confession might be used before the jury to show his, Pointer's, guilt, it could not be used to show the guilt of appellant as an accomplice; nor could any of the declarations that he made in his confession with reference to the defendant be used, but *Page 62 the court did not so instruct the jury, and they were permitted to go before the jury, and, therefore, appellant was entitled to show Pointer's subsequent statements that his confession was false. This is the rule in dying declarations under all the authorities, and it is also the rule in reference to confessions. These matters have undergone quite elaborate investigations in the decisions of this court. I deem it unnecessary to cite those cases. The statements on the part of Pointer connecting appellant with it as found in the confession could not be used against the appellant, and the introduction by appellant of Pointer's subsequent denial of the truth of the confession and admission that it was false could not be considered as self-serving so far as defendant was concerned. The interweaving of testimony in a case like this, where the guilt of the principal and the accomplice must both be shown, is on most delicate lines, and unless the jury is properly guarded in reference to the use of this character of testimony, it will be impossible for the accomplice to have a fair trial. They would attribute to the accomplice the statements and confession by the principal made long subsequent to the homicide as indicative of guilt of the accomplice. The cases cited by the majority opinion do not touch the question. I do not propose to pursue this question further than to add that appellant has the legal right to defeat the State's case against the principal by any testimony that will tend to do so. If Pointer was not connected with the killing as alleged, or if he killed, the State must show his guilt as alleged, otherwise appellant should be acquitted. He had the right to attack the State's case against Pointer, for it was necessary to prove Pointer's guilt as a step in appellant's prosecution.
There is another question in this case of far reaching importance sustained by my brethren, from which I most earnestly dissent. The testimony of a witness named Pete Miller was reproduced before the jury. There was no affidavit made under the statute by any one showing the absence of the witness, and to that extent there was no predicate laid or offered to be laid. Article 833 of the Revised Code of Criminal Procedure (1911) reads as follows: "When the deposition is sought to be used by the State, the oath prescribed in the preceding article may be made by the district or county attorney, or any other credible person; and, when sought to be used by the defendant, the oath shall be made by him in person." With reference to article 832, it is therein provided, that depositions taken in criminal cases shall not be read, unless oath be made that the witness resides out of the State; or, that since his deposition was taken, the witness has died; or that he has removed beyond the limits of the State; or that he has been prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony; or that, by reason of age or bodily infirmity, such witness can not attend. For collation of the authorities on insufficient predicate see Branch's Crim. Law, sec. 326. The bill of exceptions recites, and I am following the bill of exceptions in passing *Page 63 upon this question, as follows: "The proof as introduced before the court in the absence of the jury shows that Pete Miller was going by the name of Pete Shirra, and that the State was aware of such fact, and made no attempt to locate him by said name. That the State has shown no diligence to get him by the name of Pete Shirra whatever. The statement is further inadmissible because defendant was not present at the time it was made. I do not care to state now the grounds of objection; they are rather fully stated in the majority opinion. The evidence introduced in this connection as shown by the bill may be stated as follows: Hoff stated that he lived at Fannin, Goliad County, Texas, and held the office of justice of the peace, and was holding that office on 19th of July, 1911; that he was both justice of the peace and commissioner, and presided at the examining trial of the parties. He was introduced mainly to show the fact that he held the examining trial, and that Pete Miller testified on that trial, and the testimony was reduced to writing. The district attorney then proposed to introduce a letter and card. One of appellant's counsel requested the jury to retire, which was done. The following letter was then read:
"St. Michael, Goren, Okt. 14, 1911.
Dear Friend:
I will let you know that I am still going to sea and feeling fine hope you are all well. I am not coming back until nect year, and then I will stay there for good George how is that trial coming off and hos deed Howard and Ely Pointer come out, let me know. I have two letters written to you and no answer to any. My name is still the old one. Write me as soon as possible. Best regard to all of you. Tell Ella how the for me. George, tell my little girl how the. You know what I mean. Your friend,
Pete Miller."
Then further continuing the district attorney said: "I want to know if you recognize that as being the handwriting of Pete Miller?" He answered in the affirmative, but stated that that was all the correspondence he had ever had with him. When asked what efforts had he made to locate the whereabouts of Miller, he said he wrote to that address but had never received a reply. Being cross, he was asked this question: "I will ask you if that is not the handwriting of Pete Miller, and you are prepared to swear it is; you say you are familiar with his handwriting? A. Well, it looks like it. Q. Compare that with this, is that the same handwriting as this, is that as familiar as the other? A. It is not the same. Q. Don't you know Mr. Simmons, as well as you are sitting there that that postal card and letter is not written by one and the same party? A. I can't say. Q. You don't know it? A. I don't think it is. Q. You say you are familiar with the handwriting; which one do you claim to be the handwriting you are familiar with, the postal or this? A. I suppose this is it. Q. And this here is something else; it is not his handwriting? *Page 64 A. I don't know whether it is or not. Q. Are you prepared to say under oath that was the handwriting of Pete Miller? A. No, sir, I can not swear to it, I know it was mailed to me. Q. I will ask you another question; who is Pete Shirra? A. Supposed to be Pete Miller. Q. He has another name he goes by? A. Not that I know of; Pete Miller and Pete Shirra." He further testified he did not know whether Pete Miller got mail under the name of Shirra or not.
Partain testified: "Some of these are subpoenas issued out of the District Court of Goliad County, and transferred here with the papers on the change of venue." He then enumerates a subpoena to Harris County for Pete Miller, issued the 6th day of September, 1911, out of the District Court of Goliad County, returned: "Came to hand on 8th day of September, 1911. Not executed to Pete Miller after due search and diligent inquiry could not be found in Houston, Harris County, Texas." Subpoena issued on 12th day of September, 1911, to Victoria County, with return "Came to hand the 12th day of September, 1911, returned" but further "I have seen a letter signed Pete Miller and purporting to be written by this witness and in which reference is made to testimony of witness on examining trial of this case stated that he was on his way to Hamburg, Germany, and in the future could be reached by letter addressed to him in care of C.C. Schneider." That return was dated the 12th of September, 1911. A telegram from A.R. Anderson to the district clerk of Goliad County, Texas, is as follows: "Humble, Texas, 9-15-11. R.P. Appleby, Goliad, Texas. Pete Miller can not be found in Harris County, Texas. A.R. Anderson, Sheriff, Harris Co., Texas." On 6th of March, 1912, subpoena was again issued to Harris County, but returned not executed. On 7th of March, 1912, another subpoena issued to Harris County, returned not executed because witness could not be found in that county. Subpoena to Victoria County returned unexecuted. This subpoena was issued March 7, 1912. On 8th of August, 1912, subpoena issued to Galveston County; witness could not be found. On 26th February, 1913, subpoena issued to Jefferson County, and returned unexecuted; witness could not be found. Four of these subpoenas were issued by the State and three by the defense. Weisiger, sheriff and tax collector of Victoria County, testified that "I have made every effort in my power to locate the whereabouts of the witness Pete Miller who has been summoned as a witness in this case. I have written and wired all over the country, every place I could hear of. I will go further. He is a fugitive from justice. I hold a warrant for him and have been unable to serve it. I have written to the sheriffs of the various counties, Houston, Galveston and Dallas, and also to the sheriff of Lake Charles, Louisiana, and wired them, sent them a capias for him to these different places." He says he "did not know this man had two names, Pete Miller and Pete Shirra. He is a fugitive from justice on a charge of carrying a pistol."
Defendant further excepts to the introduction of said testimony because the State had in their possession a letter they knew was signed *Page 65 by Pete Miller, alias Pete Shirra, and have made no effort to locate said witness Pete Shirra whatever.
Because further, said letter shows on its face that he said he would be back in a year, and the presumption is that said witness is now within the jurisdiction of this court. The latest date he states he would be away is September, 1912, and the presumption is that he is now within the jurisdiction of the court living under his alias of Pete Shirra, and because said letter states that he would be back at a certain address, and there is no showing that the State tried to locate said witness at said address given in the letter. The trial court says: "This is a very serious proposition. It will be going one step further than the higher courts have gone, but I am going to let you introduce it, Mr. Morris" [Morris is district attorney]. "The objection is overruled." The further objection was made that appellant was being tried for murder in the examining trial, and is now being tried as an accomplice to murder and accessory to murder. Then follows the testimony of the absent witness, with all sorts of objections urged to its admission. It was admitted in evidence.
I am of the opinion that the trial court was correct when he stated this: "It will be going one step further than the higher courts have gone," in admitting the reproduction of testimony on such a predicate. It is going far beyond anything this court has heretofore sustained as being a sufficient predicate. The authorities are collated in Mr. Branch's Crim. Law, sec. 326. Predicates stronger than that set out in bill of exceptions were held insufficient in many cases. See Evans v. State, 12 Texas Crim. App., 370; Pinkney v. State, 12 Texas Crim. App., 352; McCollum v. State, 29 Texas Crim. App., 162; Parker v. State, 24 Texas Crim. App., 61; Smith v. State, 48 Tex.Crim. Rep.; Nixon v. State, 53 Tex.Crim. Rep.. All of these cases were where the predicate was sought to be shown by removal of the witness from the State. It was held in Cooper v. State, 7 Texas Crim. App., 194; Post v. State, 10 Texas Crim. App., 579, and Menges v. State, 21 Texas Crim. App., 413, that proof merely that a witness is absent from the State is not a sufficient predicate. It was held in Martinas v. State, 26 Texas Crim. App., 91, that the affidavit of State's counsel that absent witness had been absent from the county for a year, that attachment had been issued to every county in the State and returned not executed, and that affiant believed witness to be absent from the State, is not a sufficient predicate. It was also held in Smith v. State, 48 Tex.Crim. Rep., and Ripley v. State, 58 Tex. Crim. 489, 126 S.W. Rep., 586, that proof that the absent witness had left saying he was going to another State, and that a subpoena had been issued and returned not executed, is not a sufficient predicate. Where the witness was shown to be out of the State two years before the trial, but there was no proof of his whereabouts at the time of the trial, and there was no proof that the same person named in the affidavits of non-residence *Page 66 was the same person who had formerly testified, predicate was not sufficient. Proof that after diligent inquiry the witness could not be found, nor his whereabouts ascertained, is not sufficient predicate, citing Evans v. State, 12 Texas Crim. App., 370. Declarations of a witness that he was going out of the State is not sufficient to show that he had in fact gone, and that he had removed or resided beyond the limits of the State. Parker v. State, 18 Texas Crim. App., 72. It was again held in Scruggs v. State, 35 Tex.Crim. Rep., that letters from a third party in another State, mentioning the presence there of the absent witnesses, are only hearsay.
It will be noticed that the predicate laid or sought to be laid in this case was based on a letter which had been written from St. Michael, Goren, Okt. (whatever it may mean) 14, 1911. We suppose that "Okt." means October. This letter purported to be signed by Pete Miller, and was addressed to "Dear Friend." In this he says, "I will let you know that I am still going to sea and feeling fine; hope you are well. I am not coming back until next year, and then I will stay there for good. George how is that trial coming off, and how did Howard and Ely Pointer come out, let me know." This letter, it seems, was written October 14, 1911, from St. Michael, Goren. There is nothing to show where St. Michael, Goren, is, whether it is in or out of Texas, and no attempt to locate the place. Partain testifies he had seen a letter signed Pete Miller purporting to be written by this witness, stating that he was on his way to Hamburg, Germany, and in the future could be reached by letter addressed to him in care of C.C. Schneider. This also seems to have been some time in the year 1911. This conviction occurred on March 10, 1913. There is nothing to indicate that the absent witness wrote the letter which states he was going to Hamburg, Germany, except that it purported to be signed by him. No evidence is introduced that he wrote the letter or signed the letter. No witness was introduced to identify his handwriting. Then taking the testimony of the different witnesses as to the process issued, it does not show under our authorities that any legal diligence was used as a predicate for the introduction of this testimony. The idea that a man was a fugitive from justice on account of a pistol case and ran away from the State to go to Hamburg, Germany, or anywhere else, would hardly be plausible. The process was confined, it seems, to seven subpoenas, four by the State and three by the defendant to find this absent witness, and they were confined to just a few counties. Where Sheriff Weisiger wired and to whom is not shown except in a general way that it was to the sheriffs, and one telegram sent to Lake Charles, Louisiana. This predicate is so utterly incompetent that I do not understand how it could form the basis for the reproduction of the testimony of the supposed absent witness. The trial court was not only right in saying that this was going beyond what the appellate courts had heretofore held, but is getting far beyond all the authorities, and does not even indicate that the witness was out of the State. He may have been out of Texas, *Page 67 but that is not shown. The law requires that he must be out of the State at the time the testimony is offered.
There is another question: The court instructing the jury on self-defense burdened the charge with the relative strength of the parties, etc. Under our authorities this is error. There are quite a number of cases laying down this proposition, and sustaining appellant's objection to the charge on this ground.
The court charged the jury that certain testimony was admitted for the purpose of "impeaching the evidence" of a certain witness. Under all the authorities this charge is not sufficient. Testimony of this character is introduced for the purpose of affecting the credibility of the witness and the weight to be given his testimony. These distinctions have been drawn in the opinions, and it is unnecessary to refer to them further, or to cite the cases.
There are other questions of more or less moment that would justify review and criticism, but they are covered in the main by what I have said heretofore with reference to the confession of Pointer, and evidence of that character which was introduced to sustain the guilt of Pointer and could not be introduced to show the guilt of the accused as an accomplice. In a general way, I will again suggest this, that where a party is charged as an accomplice to a principal in a murder case like this, the testimony should be guarded very closely by the court in handling the case before the jury, to the end that the testimony used only to show the guilt of the principal can not be economized or used to show the guilt of the accomplice; that is, where testimony is introduced for this purpose the jury should be carefully guarded so they will not use it and may not use it against the accomplice. It will be understood since the rendition of the Carlisle case, 31 Tex.Crim. Rep., that the accomplice, if guilty at all, is guilty of the homicide by reason of the statutory requirements, and that these statutory matters must be fully met. The crime of the accomplice is a compound offense, but in its final analysis the accomplice would be guilty of homicide by reason of his prior acts connected with the principal or connecting himself with the principal. He would be guilty of murder by reason of acts denounced by statute, and by statute only.
While agreeing with the majority of the court in reversing the case, I am fully persuaded under the authorities and under the law, appellant was entitled to a reversal for the reasons I have stated above, and my brethren in reversing the case should have included in that reversal the matters they have held not erroneous. They are clearly in error under all the law as I understand it in Texas, and with reference to the predicate for the reproduction of the testimony of Pete Miller, the trial court himself in the bill of exceptions recognized the fact that he was in error and had gone beyond what the law was then held to be.
Concurring in the reversal, I most respectfully dissent from the ruling of my brethren holding the other matters were not error. *Page 68