Many grounds are urged by the able counsel who represent the appellant, as reasons for granting this motion for rehearing.
It is urged that we were in error in holding as admissible, the statement of Frank Havard to Griffin, the reason now given being that it was neither alleged in the indictment, nor shown by testimony that Havard was a party to the conspiracy to kill deceased. This court held in the Heard case, 9 Texas Crim. App., 23, and the Bass case, 59 Tex.Crim. Rep., that it was not necessary, in order to make admissible evidence that one was a co-conspirator, to show that he was indicted as such, and we think the holding correct. We think the evidence was admissible for various reasons. The case against appellant was circumstantial in character, the State's theory being that Havard and Watts were the actual perpetrators of the crime in which appellant was an accomplice. The uncontroverted testimony showed that at the time Mrs. Sapp was shot by Dick Watts, Havard was a few feet distant, and that he said nothing at the time, except to go on with his cooking operations. It was also shown that he was engaged in the same occupation when appellant appeared on the scene some two minutes after the shooting, and that when appellant came up on this occasion, he merely said, "My wife is dead," and asked no questions of either Watts, Havard, or any other person as to what had occurred, or how deceased came to be shot, or by whom. In the statement supposed to have been made by Havard, and which was testified to by the witness Griffin, occurs the following language: "He (meaning Havard) never told me that he told Sapp that he wouldn't kill her, but that he would get Dick Watts to kill her for him." As stated in the original opinion, if Havard did procure the services of Dick Watts to kill Mrs. Sapp, and aided and co-operated with appellant and Watts in the plans to kill her, and was actually present when she was killed, he would not only be a principal offender, under Article 78 of our Penal Code, whether or not he was aiding or assisting in the actual killing at the time, but he would also be a most material witness for or against appellant, and his death at the *Page 621 hands of appellant would be an exceedingly strong circumstance against the latter. Without further discussion of the matter of conspiracy, we are of opinion that the facts pertaining to the death of Havard were pertinent and material, and as a motive for the killing of such witness, it was material to show declarations by him hostile to appellant, or of a nature injurious to appellant. This, we think, would include the declaration in question.
We do not think we erred in holding the declarations of Havard admissible, nor do we think the evidence failed to support the proposition that he was a party to the conspiracy bringing about the death of the deceased, was present at the homicide, and his subsequent declarations, made his removal most material to appellant.
It is insisted that we erred in holding admissible the evidence of Joe Moore, as to the conversation had with appellant and Van Auken some time prior to the marriage of the appellant and deceased. We cannot agree with appellant that this testimony was too remote, and had no probative force. The conversation was in the latter part of 1912, and the proposition put to Moore by appellant and Van Auken, was that Van Auken would produce an old and wealthy woman, and Moore would marry her — and as suggested by appellant, she would no live long, and by either appellant or Van Auken — "they could knock out her light;" her money to be divided between the three parties to the conversation. Moore declined the proposition. The proof further showed that some time during the following year, appellant got a divorce from his wife, and a few months thereafter married the deceased at the home of Van Auken, the deceased being an old and wealthy woman, and appellant a young man; and that very soon thereafter appellant came into possession of large sums of money from deceased, and that about the same time, Van Auken deposited also considerable sums of money. It was shown by testimony that about the time appellant brought suit against his wife for divorce, or during that fall, that he stated to parties that he was going to marry deceased, and to a witness with whom he had a conversation about this time, who told him that deceased had had considerable trouble with her former husbands, appellant stated that if he got her she would never have trouble with another one.
The record discloses heartless and jeering remarks made by appellant towards the unfortunate woman before and after his marriage to her, and up to the time she was killed, and in this connection we observe that the court charged the jury, at the request of appellant, that unless they believed beyond a reasonable doubt that that conversation testified to by the witness Moore, referred to a particular woman, they should disregard the same. We find nothing in that part of Mr. Branch's Annotated Penal Code, referred to by appellant, which would exclude this evidence.
It is again urged that the juror Stevens was disqualified by reason of having read some of the evidence of a companion case, and having *Page 622 formed an opinion. An examination of this bill of exceptions discloses that said witness stated on his voir dire that he had read "most everything" pertaining to the trial of appellant at Lufkin, for the murder of Dick Watts, and said bill further discloses that upon cross-examination by the skillful counsel, said juror was led to say that he had an opinion; but upon direct examination, both original and in rebuttal, the juror stated positively that while he had an opinion, it was not such as would influence his action, and that he could try the case upon the law and the evidence just as fairly and impartially as he could if he had never heard of it. This Court has often held in cases of this character, that jurors giving similar answers are competent. Vernon's C.C.P., p. 377-378.
It is again urged that the court erred in admitting the testimony of Mariah Hamilton, Essie Abbott, Mrs. Myers, Mrs. Scott, "and others," because hearsay, etc. Mariah Hamilton was cook for appellant and deceased. A part of her testimony, as disclosed by the bill of exceptions, was to material facts, and there is nothing in said testimony of said witness, as contained in said bill, which shows whether appellant was present or not at the time the statements of Mrs. Sapp, testified to, were made, and our presumption must be in favor of the correctness of the ruling of the trial court.
Mrs. Myers testified that she boarded at the same place as appellant and deceased, and that Mrs. Sapp usually ate her meals alone, and that she seldom saw them take a meal together. Her evidence was entirely competent, and no element of hearsay appears therein.
Much of Mrs. Scott's testimony was pertinent and admissible. The bill of exceptions taken thereto fails to show that any objections were made thereto as being hearsay. There is nothing in the statement of said witness, as set out in said bill of exceptions, which discloses that the statements were made out of the presence of the appellant. The same is true of the bill of exceptions reserved to the testimony of Mrs. Essie Abbott. A blanket objection seems to have been made to the testimony of these witnesses, urging generally, that said evidence was prejudicial, of no probative force, hearsay, etc. When a bill of exceptions discloses that a great part of the testimony set out is material, and the same contains pertinent evidence, such a bill of exceptions will not suffice to bring before us any matter for review.
This disposes of the objections urged in this motion for a rehearing, and not being able to agree with any of the contentions made by appellant, his motion is overruled.
Overruled. *Page 623
ON REHEARING, June 25, 1920.