In our original opinion herein we stated our doubt as to the admissibility of the testimony of Mrs. Rivera as to the conversation had between her and Frank Miller a number of days after the alleged robbery. The harmless character of said testimony was affirmed in our opinion upon the first motion for rehearing. At the urgent insistence of appellant we allowed a second motion to be filed and have considered anew the many questions presented, and have concluded that we were in error in holding the above testimony admissible or harmless. The State's case rested largely upon the soundness of the proposition that said Miller and appellant were co-conspirators and principal offenders in the crime charged. One of the features of the transaction by which Miller's acting together with appellant was proven, was his otherwise gratuitous promise to Rivera, the injured party, at the time of and in connection with the alleged taking of the money by appellant, that he, Miller, would guarantee the repayment to Rivera of the money lost, within eight or ten days thereafter. Such promise to pay thus became a material matter. Mrs. Rivera swore that a number of days after the said robbery Miller came to her house to see her husband, and that she then had a conversation with him; that she knew about the robbery; and that she went on crying and told Miller if he was not going to pay that money, her husband was going to lose his job. The State's attorney then asked her what Miller said to this. Her reply was, "He told me not to be worried about it, that he would take that money over to my house; that he was going to pay it." She further said she told her husband of this conversation. Upon more mature reflection we have become convinced that the statement above mentioned could easily be construed by the jury as an admission by Miller of his complicity in the robbery committed by appellant; that he was thus admitting to Mrs. Rivera that he was going to repay money which appellant had taken from her husband in said robbery. This being our view of said statement, it would be deemed by us material and we think it inadmissible under the well known rule rejecting testimony of statements made by coconspirators out of the presence of the accused after the conspiracy has ended. *Page 518
So believing and considering ourselves in error in holding said testimony to be admissible, appellant's motion for rehearing is granted, the affirmance set aside, and the judgment will be reversed and remanded.
Reversed and remanded.
ON REHEARING February 21, 1923.