This appellant was convicted of the murder of his wife in the District Court of Brazos County, Texas, and given a punishment of ninety-nine years in the penitentiary. Those of the errors therein which are deemed of sufficient importance to discuss, as well as the evidence in the case, will appear in the opinion.
The case originated in Liberty County, Texas, but was transferred of the court's own motion to the District Court of Brazos County, *Page 611 and when there called for trial, a plea to the jurisdiction was presented and overruled; which constitutes the first error presented. The order changing the venue of the case to Brazos County recites that it was made of the court's own motion, with the consent of the appellant, on account of the great publicity given the case, and the prejudice existing in Liberty County and each of the counties of that and adjoining districts, against the appellant.
Brazos County, to which the case was transferred, was not in the same nor in an adjoining district to Liberty County, which facts form the basis of appellant's plea to the jurisdiction, as stated. Said plea did not controvert the publicity or prejudice stated in the order of the court as reasons for the removal of the case to Liberty County, but did controvert by affidavits and evidence that such order was made with the consent of the appellant. After hearing said plea, and the evidence offered thereon, the court made the following order: "And it further appearing to the Court that because of the notoriety given the evidence in said cause and the publication thereof in the various newspapers circulating in this, and the adjoining districts, the said cause numbered 2858 was heretofore on the Court's own motion and with the consent of the defendant, by order entered on the minutes of this Court on the 5th day of December, 1916, transferred to the District Court of Brazos County, Texas, wherein said cause is now pending.
And the Judge presiding herein, being satisfied that because of the facts hereinabove stated, to wit: The great publicity given the evidence and facts of this case, a trial alike fair and impartial to the accused and the State cannot be had in this, Liberty County, and because of the great prejudice which exists in this County, as well as in the other counties of this, and the adjoining districts to this 75th Judicial District, he, the said Judge, of his own motion, now here orders that the venue of this case be changed to Brazos County, Texas, it is therefore considered, ordered, adjudged and decreed by the Court that the venue of this cause, be, and it is hereby changed from this, Liberty County, to be tried in the District Court of Brazos County, Texas, the same being one of the Counties in the 20th Judicial District of the State of Texas, and that being the nearest and most convenient County to Liberty County in which a fair and impartial trial of this cause may be had."
Without going into details in discussing the laws and constitutional provisions involved, we will observe that a trial by a fair and impartial jury is guaranteed by our Constitution, and that each and all of the laws enacted by the Legislature have in view the attainment of the object and purpose of giving to the accused a fair trial before an impartial jury as guaranteed.
Our statutes provide substantially that if it be shown in an application for a change of venue or otherwise, that all the counties adjoining that in which the trial is pending, are subject to some valid *Page 612 objection, the case may be removed to such county as the court may think proper. Art. 632, C.C.P. The finding of the court, as outlined in his order changing the venue of his own motion, is presumed to speak the truth, and will not be revised on appeal, unless it be affirmatively shown that appellant was materially injured by such change of venue. (Cox v. State, 8 Crim. App., 283; Frizzell v. State, 30 Crim., App., 42; McCoy v. State, 27 Texas Crim. App., 417; Thurman v. State, 27 Texas Crim. App., 347.) Art. 634, C.C.P., expressly provides that the action of the trial court granting change of venue will not be revised unless the facts showing such objection be stated in a bill of exceptions filed at the time, which was not done in this case.
Each of the cases cited by appellant in support of his contention in regard to this matter is decided on a question foreign to this issue and is not in point.
Appellant's motion for continuance was properly overrule, — The fact that the Court of Criminal Appeals had not acted on his application for bail in the instant case, was not sufficient ground for continuance. Ex parte Streight v. State,62 Tex. Crim. 453, 138 S.W.R., 752.
Nor was the absence of one of appellant's counsel sufficient ground for the granting of a continuance. Other and able counsel were present at the beginning of the trial, and the rights of appellant were fully and fairly protected.
The trial court did not err in overruling the application for severance, asking that Lou Sapp, the brother of appellant, be first tried. The cases were pending in separate counties, and in different jurisdictions, and to have granted the severance asked for would have amounted to a continuance of the instant case, which is expressly forbidden by our statutes. Art. 727, C.C.P.; Price v. State, 68 Tex.Crim. Rep., 152 S.W.R., 640; Locklin v. State, 75 S.W.R., 305. The case cited as authority by appellant was one in which both cases were pending in the same jurisdiction, and is otherwise not in point. All the authorities seem to hold that no error was committed in allowing the State to challenge jurors for cause who stated on their voir dire that they had conscientious scruples against inflicting the death penalty as punishment in cases depending on circumstantial evidence. Shafer v. State, 7 Texas Crim. App., 239; Little v. State, 39 Tex.Crim. Rep., 48 S.W.R., 984; Grant v. State, 67 Tex.Crim. Rep., 148 S.W.R., 760; Clanton v. State, 13 Texas Crim. App., 152.
That there was an eyewitness to the actual homicide would not necessarily remove the case from the domain of circumstantial evidence. Appellant was not present at the time of the killing and his guilty connection therewith was more an issue in the case than the fact of death. Nor would the statement of the man who actually fired the fatal shot, to the effect that the appellant hired him so to do, take *Page 613 the case out of the rule of such evidence. Mr. Branch, in his Criminal Laws of Texas, p. 106, cites authorities supporting this position. See also Block v. State, 81 Tex.Crim. Rep., 193 S.W.R., 303.
Objection to a particular juror, who stated that he had formed an opinion, is disclosed here by some of appellant's bills of exception. On similar complaints, it has been repeatedly held by this Court that such juror is competent if his opinion be formed by mere reading, etc., or if it appears to the court that such an opinion will not influence him in arriving at a verdict in the case. See Vernon's C.C.P., p. 377, and authorities cited.
What we have said above disposes of appellant's contentions with regard to matters preliminary to the introduction of evidence.
Mrs. Ellen Sapp, the wife of appellant, was shot and killed on November 7, 1914, the shot being from a gun in the hands of one Dick Watts, and the same was claimed at the time to be accidental. The occurrence took place at a hunting camp, and the persons present were Mrs. Sapp (deceased), Mrs. Taylor, Dick Watts, Frank Havard, and H. Sowell. Appellant was not present, but was not far away, and arrived on the scene a few minutes after the fatal shot. It was shown that of the persons present at the time of the death of Mrs. Sapp, Sowell was the only one living at the time of the trial. Nothing appears as to the cause of the death of Mrs. Taylor, but the State claimed on the trial of the case that both Watts and Havard had been murdered by appellant and evidence tending to so show was admitted against the appellant, as was likewise evidence tending to show that appellant had been searching for the witness Sowell while he, appellant, was armed.
The indictment and conviction of appellant was as an accomplice to the murder of his wife, it being alleged in the indictment that Dick Watts was the principal offender. No mention was made in the indictment of Frank Havard. The State's theory was that a conspiracy existed between appellant and others, having for its principal object, the getting of the money and property of the deceased; that Watts and Havard were parties to the enterprise, their participation being mainly for the purpose of bringing about the death of Mrs. Sapp after she had given to her husband large sums of money and had made a will in his favor. The killing of deceased being merely one of the steps necessary to obtain the property, in this opinion it will be taken for granted that if there was such a conspiracy having such an object, it had not been consummated at the time of the homicide. The will of deceased making appellant the principal beneficiary was filed by appellant for probate shortly after the death of his wife, and was contested by her relatives. On this trial statements made by both Watts and Havard, subsequent to the death of Mrs. Sapp, were admitted in evidence. The statement of Watts was in substance that he killed Mrs. Sapp, and was hired so to do by appellant; that of Havard was in substance that appellant tried to get him to kill Mrs. *Page 614 Sapp; that he turned the job down, but got a man, to-wit, Dick Watts, for the appellant. As stated above, in view of the fact that the money and property had not yet been obtained by the appellant under the law, we will not take time to discuss the proposition, but consider it as settled by the holdings of this Court that the declarations of Havard and Watts, if in fact they were co-conspirators with appellant, were made during the pendency of the conspiracy, the main object of which had not been consummated at the time such statements were made.
It is fundamental that if Watts killed Mrs. Sapp in violation of law, he would be a principal offender, and likewise, if Havard procured Watts to do this killing, for Sapp, and was personally present when the killing took place, he too, under our law, would be a principal therein. See Art. 78, Vernon's Penal Code. We think the evidence as to these statements of Watts and Havard were admissible for several reasons.
If there was a conspiracy between the parties, it is obvious that the main object was to obtain the property of deceased, which object was only partially obtained by her death, there remaining, as stated above, yet to be accomplished by said conspiracy, the probating of her will, and the reduction to actual possession and ownership of her property, and in such case, so long as the parties to a conspiracy are still moving toward the accomplishment of any of its objects, the acts and declarations of one in pursuance of the common design, whether made in the presence and hearing of the others or not, becomes admissible against each of the others, even though tried separately. Gracy v. State, 57 Tex.Crim. Rep.; Serrato v. State, 74 Tex.Crim. Rep., 171 S.W.R., 1133; O'Neal v. State, 14 Texas Crim. App., 582; Long v. State, 55 Tex. Crim. 55; Kennedy v. State, 19 Texas Crim. App., 618; Nunez v. State, 70 Tex.Crim. Rep.; Zweig v. State, 74 Tex. Crim. 306, 171 S.W.R., 747; Cox v. State, 8 Texas Crim. App., 303. We regard the opinion of Judge WHITE, in Cox's case, supra, one of the ablest and best considered among our decisions. In that case a witness testified that one claimed to be a co-conspirator by the State, out of the presence and hearing of defendant on trial, had said to witness:"
"Going back to Mr. Augustine's, Meador told me that they were going to kill the parties, — Humphreys, Theodore Brazell, and the two Ainsworth boys. He told me they were going on Monday night to do it. He told me this Friday evening. He told me the next Monday they were going to do the killing." To the question "What was the expression of Meador?" witness replied, "He said `We are going to kill them.' He said `We are going to do it.' He did not say who was going with him. Meador told me that Augustine was going with him. He told me he was right in for it." Witness is satisfied that Cox did not hear this conversation. In another portion of his testimony the witness says that Meador told him that Cox was going with him *Page 615 to do the killing. This is in substance a resume of the principal points in the evidence objected to."
Discussing objections to the admission of this evidence, this Court quotes from Mr. Greenleaf, as follows:
"The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan and with reference to the common object is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed in law a party to every act which has before been done by the others, and to every act which may afterwards be done by any of the others, in furtherance of such common design.
The court also quotes in said opinion further from other decisions as follows:
"In The People v. Brotherton, 47 Cal. 388, it was held: `Where two are jointly indicted, the prosecution may on the trial prove the declarations and acts of one done in the absence of the other, before proving the conspiracy between the defendants, provided proof of such conspiracy is afterwards made."
"In the State v. Winner, 17 Kan. 298, it was held that "ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy itself should first be established prima facie, and to the satisfaction of the judge of the court trying the cause; but this cannot always be required. It cannot well be required where the proof depends upon a vast amount of circumstantial evidence — a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations."
"In the People v. Geiger, 49 Cal. 643, it was held that `if two are jointly indicted for murder, and are tried separately, and on the trial of one there is testimony tending to show a conspiracy between them, the declarations of the one not on trial, made before the killing, may be received in evidence. And the conspiracy to commit a crime being proved on the separate trial of one of the conspirators, the jury are to give the same weight to the declarations of the co-conspirator not on trial as they would give them if made by the one on trial. See also People v. Cotto, 49 Cal. 166."
After making these citations and others, this Court states its conclusion, as follows:
"To us it seems too plain to admit of argument, that, when two or more are found acting together with an unlawful intent in the commission of an offense, the common design and acting together *Page 616 makes them ipso facto conspirators — endows them as a body with the attribute of individuality — merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders 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. 1 Bishop's Crim. Law, sec. 432; Kelley v. The people, 55 N.Y. 566; 2 Whart. on Ev., 1205; 47 Ind. 568."
In the Kennedy case, supra, this Court held as follows:
"The fifteenth bill of exceptions was reserved by defendant to the court's permitting Jack Williams to testify, over the objection of defendant, to certain statements made to the witness by Iven Thompson (a codefendant, some days before the killing, relative to the intentions of Thompson and appellant Kennedy to kill Edmund Hill — appellant Kennedy not being present when Thompson made these statements to the witness. The evidence was admissible. The witness stated that Thompson said "that he and Tom Kennedy were going to kill Hill the first chance they got, and that they were going for him at any time." A conspiracy between the parties may not have been conclusively established on the trial, and this testimony tended to establish its existence at the time the statements and declarations were made."
Mr. Wigmore on Evidence, page 1291, Sec. 1079, lays down the rule as follows:
"A conspiracy makes each conspirator liable under the criminal laws for the act of every other conspirator done in pursuance of the conspiracy. Consequently by the principle already exemplified in other relations (Ante Sec. 1077) the admissions of a co-conspirator may be used to affect the proof against the others on the same condition as his acts when used to create other legal liability."
In the Section 1077 referred to, Mr. Wigmore states "that the confession of a principal is admissible on the trial of an accessory to evidence the commission of the crime by the principal."
Mr. Abbot on Evidence, p. 190, states the rule as follows: The familiar rule that when several persons are engaged together in the furtherance of an illegal design, the actions and declarations of one conspirator, made together in pursuance of a concerted plan, and with reference to the common object, are competent against the others though not made in their presence," and again the same author, on page 621, says: "slight evidence of concert or collusion between the parties to an illegal transaction admits evidence of the acts and declarations of one against the others under the rule already stated on page 190."
Mr. Wharton in his valuable work on Criminal Evidence, p. 1431. lays down the following proposition: "When several person are proved to have combined for the same unlawful purpose, any act *Page 617 done by one of the party, in pursuance of the concerted plan with reference to the crime charged, is the act of all; proof of such act is evidence against one and all the others."
The rule that the conspiracy must be established before declarations of co-conspirators are admissible against appellant, no longer obtains in this State, nor does the order in which evidence to show the conspiracy is admitted, affect its admissibility. Nelson v. State, 43 Tex.Crim. Rep.; Barber v. State, 69 S.W. Rep., 515; Segrest v. State, 57 S.W. Rep., 845.
The declarations of both Havard and Watts were in pursuance of a design common to them all, and were made while the objects of the conspiracy were not yet accomplished.
There is another rule, by reference to which this evidence would be held admissible. Appellant was charged as an accomplice, not being actually present when the killing took place. This being the form of the allegation in the indictment, it devolved upon the State to prove the guilt of the principal or principals as a part of its case against appellant. Sims v. State, 10 Texas Crim. App., 131; Bluman v. State, 33 Texas Crim. App., 43; Collins v. State, 24 Texas App., 141; Millner v. State,75 Tex. Crim. 22, 169 S.W.R., 899.
That Watts shot and killed Mrs. Sapp was not denied. That Havard was present at the time of such killing was also uncontroverted. The confessions of a principal in such a case are held admissible to prove his guilt. Crook v. State, 27 Texas Crim. App., 239; Hamlin v. State, 39 Tex.Crim. Rep.; Thomas v. State, 43 Tex.Crim. Rep..
Such evidence being admissible for the purpose stated, it becomes the duty of appellant, under our practice, to object to its use as against him, if he so desires, and such objection must be properly raised and presented to the trial court and brought here by exception and bill in order to entitle it to our consideration. There was no such objection to this evidence. It is not claimed or admitted that such evidence could be used to incriminate the principals only, nor was any charge asked limiting such evidence to any such purpose, all of which must be done by appellant if he wishes such evidence limited for any purpose whatever.
Again: Watts and Harvard were eyewitnesses to the killing of Mrs. Sapp, and if they were or became witnesses against appellant for his alleged complicity in such killing, we think it proper to show, if possible, that appellant attempted to destroy their evidence and suppress their testimony by killing them.
It will be observed from the record that from the time of the killing of deceased on November 7, up to about Christmas of that year, both Watts and Havard appeared to be on terms of friendly intimacy with appellant; that about the latter time, Watts began to talk to different parties of his own and appellant's guilty connection with said *Page 618 killing; and early in January he disappeared. The circumstances surrounding his disappearance were offered in evidence on this trial by the State, as showing that appellant and his brother were the guilty instruments in bringing about Watts' death. It also appears that Havard began to talk along the same line in January, and shortly thereafter he disappeared, as the State claims, as the result of the acts of the same agent or agents. Both these men's bodies were found buried in the big thicket, with indisputable evidence that they had been murdered.
We are inclined to believe that the State might prove hostile declarations toward appellant made by Havard and Watts under these circumstances. The case was one of circumstantial evidence. The deaths of said witnesses were offered as circumstances against the accused, and as tending to show the motive and reason for such killing might not the declarations of such witnesses, made shortly before their deaths, be admissible? That one is merely a witness against one accused of crime might supply a remote reason or a mighty motive for the killing of said witness, according as his testimony would hurt little or much; and as supplying a cogent reason for the removal of such evidence by the death of said witness, we think, in a proper case, the declarations of the deceased witness showing what his evidence would be, is provable against the accused. Watts and Havard were present at the killing, it is true, but for nearly two months thereafter their accounts of the same were, that it was accidental, which was favorable to the accused, and during these two months they remained unharmed and unmolested. They change their attitude, and each makes to several persons statements extremely damaging to appellant, to the effect that the killing was intentional, and that appellant was the prime mover in the whole matter. Almost immediately both of said parties are killed, slain, and their bodies are found buried near each other, under such circumstances as to make it reasonably appear that they were killed by the same party. What was the motive or reason for such killing? That they were merely witnesses to the killing. It might be so asserted. Up to the time they began to talk, was there any reason for supposing that their witnessing was against appellant? Apparently not. But from the time their said statements were made their attitude became wholly different, and there arose apparent necessity for the suppression of their testimony and the removal of such witnesses to accomplish said purpose. It seems to us that in such case the statements of said parties were strong circumstances bearing upon the motive and purpose of the person by whom they were killed.
What we have said, disposes of the objections to the evidence of statements made by Watts and Havard, as testified to by a number of witnesses, and constitutes, in our opinion, a decision of the main point in this case. *Page 619
The evidence of the witness Joe Moore, to the effect that appellant and one Van Auken tried to induce him some time prior to the marriage of appellant and deceased, to marry a wealthy old woman, obtain her property, and thereafter dispose of her in some way and divide her property between said Moore, Van Auken and appellant, was admissible for what it was worth in the minds of the jury, as evidence bearing on the question of the conspiracy.
The testimony of the friends — intimates of both appellant and deceased — as to acts and conversations showing the lack of affection on the part of appellant for his wife, his attitude toward her, both before and after their marriage, his neglect of her, his attentions to other women, his desire to get possession of her property — were all admissible as circumstances throwing light on the real purpose or motive of appellant throughout the entire affair. The testimony is too long to even substantially state the same, being presented here in a statement of facts of over eight hundred pages; but we have carefully read it all, and considered it in the light of appellant's numerous objections thereto. Most of the objections we do not deem worth mentioning, as they are repeated in lengthy bills of exception, many of them without citations of authorities, or reasons which appeal at all to us as being worthy of inserting in this opinion.
Effort was made to impeach certain witnesses for the State by proving their bad reputation for chastity. The court did not err in refusing to permit the appellant to so attack the credibility of said witnesses.
There was objection made to proof of acts and declarations of Lou Sapp, the brother of appellant, at the time the body of Dick Watts was discovered, and publication made of the facts attendant thereon, in newspapers. It was claimed by the State that Lou Sapp made himself a party to the conspiracy by assisting appellant in accomplishing the deaths of Watts and Havard. If this be true, under our decisions, one who enters a conspiracy at any stage of its progress, adopts all that has gone before, and makes himself a party thereto, and to what comes after, and his acts and declarations are admissible in evidence.
More than thirty special charges were asked by appellant, seven of which were given. We have examined the various refused charges, in the light of the facts and the charge as given, and do not believe there was any error in refusing any and all of them. The trial court fairly submitted the law of circumstantial evidence; told the jury substantially that Watts and Havard were accomplices, and gave the law governing such cases. He told the jury that they could not consider the statements of Havard and Watts against the appellant unless there was a conspiracy between the parties to kill the deceased; that there could be no guilt of appellant if Mrs. Sapp was accidentally killed, etc. We think the law was fairly presented to the jury, and the special charges correctly refused. *Page 620
We have gone fully through the lengthy and exhaustive brief of appellant, setting up in more than one hundred assignments the matters contained in his various bills of exception. We think it is sufficient to say that we do not find any one of the matters complained of to show reversible error, and the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. June 25, 1920.