Appellant was convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary.
1. The appellant complains that the court erred in excluding the testimony of Dr. McCaleb as to his expert opinion of the position of the arm of the deceased at the time of receiving the fatal shot. There was no error. This question has been several times passed upon by the courts of this State. Williams' case, 30 Texas Crim. App., 447; Cooper's case,23 Tex. 331; Coyle's case, 31 Tex.Crim. Rep.; Thompson's case, 30 Texas Crim. App., 328; 8 Crim. Law Mag., 148.
2. Appellant complains that the court erred in admitting evidence of threats made by Joe Blain against deceased before the conspiracy was formed, and appellant's absence.
First. It is settled law that a conspiracy can not be proven, nor can any one be connected with a conspiracy, by the declarations or acts of another made or done in his absence. Outside of such acts and declarations there must be proof of the conspiracy itself; and then, to be admissible, the acts and declarations must relate to and be in furtherance of the common design, and be made during the existence of the conspiracy. But when the evidence makes a prima facie case of a conspiracy, then the jury can look to such declarations and acts *Page 247 as are admissible, to ascertain the existence of the common design and relations of the parties to the conspiracy. Spies' case, 122 Ill. 102.
The necessity for a strict application of these rules is obvious in all cases where the charge is for conspiracy as a substantive crime (Penal Code, arts. 800-805), or where the existence of the conspiracy is the question at issue. But in cases where the conspiracy is shown beyond question by the parties being present and acting together, the rules have not the same force, as the question is as to complicity in the crime itself rather than in the conspiracy that led to it.
Now, even in cases where the conspiracy is the issue, thetime when the conspiracy was first formed is frequently a question of fact that must be left to the jury, under proper instructions, and the rule would not be more rigid in cases where the conspiracy was not a question. In the case at bar it does not appear that the acts and declarations complained of did in fact transpire before the conspiracy was formed, but, on the contrary, the facts of the case justified their submission to the jury.
The statement of facts shows, that Barber was killed by Joe Blain on August 31, 1891. That some two years before his death there was much animosity existing on the part of the Blains against Barber, caused by his taking part against the Blains in a criminal prosecution in which Joe Blain was sent to the penitentiary. In January, 1889, Joe Blain declared, in the presence of appellant, that he was going to kill the d___n long-nose Yankee son-of-a-bitch. In January, 1890, while Joe Blain was in the penitentiary, appellant stated that he and John Blain would do up Barber if they ever got a chance. Some two months after his return from the penitentiary Joe Blain and Barber had a personal difficulty, in which he cut Barber with a knife, and subsequently made repeated threats to kill Barber, stating he would be fixed for him and have his witnesses there; that he would rather have good witnesses than good lawyers, and would go back to the penitentiary, and tried to induce parties to go on his bond in view of the prospective homicide. The fact that Joe Blain stated that he himself intended to kill. Barber does not militate against the theory of conspiracy, for it was the threat actually carried out with the concurrence and presence of appellant. The Blains were brothers. It seems all they wanted in this matter was the opportunity. This was supplied by Askey. He met Barber at a saloon on the evening of the homicide and charged him with having threatened to whip him, Askey. Barber replied that his informant was a liar. Askey went off to bring his informant, and was shortly after seen talking with appellant, who called Joe Blain to them, and after an interview of a few moments they separated, armed themselves, and repaired to the saloon where Barber was. We think there is evidence in the record from which the jury might find that the design to *Page 248 kill Barber had been agreed upon by the Blains long before it was accomplished, and that the threats were made during the conspiracy.
Second. It is to be observed that the reason for requiring proof of the existence of the conspiracy aliunde the acts and declarations of the coconspirators made in the absence of appellant is to prevent the danger of the jury finding the conspiracy to exist from the acts and declarations alone. In those cases, therefore, where the existence of the conspiracy is not an issue, because it is merged in the crime, and manifest front the parties being present and acting together in the commission of the crime (Cox's case, 8 Texas Criminal Appeals, 303), or where the proof aliunde establishing the conspiracy is so clear and conclusive as to negative the probability that the jury could have relied on such acts and declarations in finding a conspiracy, then their admission only seems to throw light on the conduct and motive of the parties acting together. If, therefore, in such cases, acts and declarations transpiring before the formation of the conspiracy are admitted, still, if they relate to and are in the furtherance of the identical purpose actually carried out, their admission can seldom be otherwise than harmless; especially where, as in this case, the court charged the jury that no threats of Joe Blain or Askey could be evidence against appellant, unless they find from other evidence that there was an agreement between them and appellant to kill. Barber, and then only for what it was worth in explaining the acts of the parties at the time of the killing. The Penal Code (article 74) declares, that when parties are shown to be acting together at the same place and time in the commission of crime, they are principals; and where one agrees to or advises the commission of an offense, and is present when it is committed, he is a principal, whether he aids or not. Id., art. 78. It is true that mere presence at the commission of the offense may not constitute a principal. His presence may be the result of accident, curiosity, or to carry out a purpose different from that consummated; yet if he agrees to the act, incites or encourages it, and is present at its commission, he becomes a principal. This agreement may be shown directly or by circumstances, such as his companionship with the principal actor, his knowledge of his purpose, and his own conduct before, at, and after the commission of the crime. Burrell's case, 18 Tex. 732; Willson's Crim. Stats., sec. 147.
As we understand the record, the evidence of a conspiracy is clear in this case. Appellant was present. He came into the saloon with Askey and Joe Blain. They all came armed and called on Barber to come into the back yard. Did appellant agree to the commission of the homicide? That, as to him, was the factum probandum upon the proof of which his conviction must rest. To implicate him lie must have been aware of the purpose of his companion. The evidence shows that Askey, leaving Barber in the saloon, met appellant on the *Page 249 street, near a bank building, both in their shirt sleeves. They were shortly after joined by Joe Blain, and were earnestly talking together. Finding themselves observed from the bank, they separated, Joe Blain telling them to go to the place where Barber was, and he would get his pistol and come there and kill him. Joe Blain rode away to get a pistol, and appellant and Askey shortly after went into a store with coats on, and rented two pistols, promising to return them that evening or the next day, or pay for them. Thus armed they went to the place of the homicide, where they met Joe Blain. They first tried to induce Barber to meet them in the back yard, where Joe Blain perhaps had the "good witnesses" he had prepared for the occasion; but deceased, declining to go out unarmed, attempted to get hold of a Winchester in the room, and was shot down by Joe Blain, Askey and appellant standing by. Deceased, as he was lying on the floor, attempted to raise his gun, when appellant stepped forward and placed his foot upon it. We, think these facts clearly show that appellant and his coconspirators were all acting together in the preparation for the murder of Barber, which, upon the same evening, was continuously carried into effect; and appellant was not only ready to assist, but did in fact assist, in the crime, and thereby became a principal. If appellant was a principal, no prior threats can add force to the facts of deliberate preparation for and execution of the formed design.
3. But there is another ground upon which Joe Blain's threats would be admissible. It is the theory of the defense that Joe Blain and his companions were seeking Barber only to confront him in his denial of the Askey charge, and for no other purpose, and Joe Blain was forced to kill him in self-defense. If this be true, appellant is not guilty. The intent of Joe Blain then becomes most important. In this point of view the threats and declarations of Joe Blain, constantly made during the months before and up to the morning of the homicide, become at once admissible as showing a deep-seated purpose to kill Barber, existing not only during the conspiracy but long before, and they would be cogent evidence to rebut the theory that the design to kill was suddenly formed, and that Blain acted in self-defense. Especially would they be admissible in a case like this, where, outside of his own confessions, the frequency of the threats of Joe Blain, coupled with personal violence to the deceased, the companionship and relationship of appellant to Joe Blain, and his own threats and conduct are such as would authorize a jury to infer that appellant had full notice of Joe Blain's purpose before a conspiracy was formed, or appellant had agreed to assist in carrying out said purpose. We therefore hold that the court did not err in admitting the declarations of Joe Blain: first, because it did not appear that they were in fact made before the conspiracy was formed; second, because their admission, if erroneous, would be harmless, appellant being shown by the evidence to be a *Page 250 principal; third, because admissible to rebut the theory of sudden killing in self-defense, and show the actual purpose of Joe Blain, in which, by other evidence, appellant is shown to have concurred.
In the Harris case, 31 Texas Criminal Reports, 414, criticised, but misapprehended, by appellant's counsel, we considered a similar objection to that urged here. The question of conspiracy vel non was not involved in the case. It was conceded. There could be no denial of the fact that deceased was taken out in the night and hanged by a mob. The question in the case was whether defendant Harris was one of the mob. The objection was, the court admitted the acts and declarations of one of the conspirators occurring before the formation of the conspiracy. We replied, that as the courts did not adhere to the old order of introducing proof, to wit, of requiring the conspiracy to be first established before introducing acts and declarations of coconspirators, and because the time when the conspiracy was first formed was frequently a disputed question, it often became impossible for the court to draw a precise line for the admission or exclusion of testimony of that character, and such testimony would seldom reverse a case where the jury was properly instructed to disregard all acts and declarations of coconspirators occurring in appellant's absence, and not during the existence of the conspiracy. But we further held, that where one originates a criminal purpose, and induces another to assist in its execution, knowing and concurring therein, and this guilty knowledge and concurrence is shown by evidence aliunde, then the acts and declarations of the principal can be shown in evidence to prove the guilty purpose, though occurring anterior to the conspiracy. Smith's case, 21 Texas Crim. App., 102. It seems to be settled everywhere, that one who enters into a conspiracy already formed between two or more becomes responsible for every relevant act and statement of each conspirator transpiring before he entered into the conspiracy, though he in fact was ignorant of them. Krebs' case, 8 Texas Crim. App., 1; Smith's case, 21 Texas Crim. App., 96; 1 Greenl. on Ev., sec. 111. It is certainly difficult to see the force of the reasoning that would make one responsible for the words and conduct of two or more persons who, before his connection with them, had agreed to commit a crime, though he was in fact ignorant of such words and conduct, and yet not responsible for the acts and declarations of one originating the plan into which defendant knowingly entered and assisted in carrying out. The first rests on the technical reason of a conspiracy existing, and the law presumes knowledge and concurrence on the part of every coconspirator. The second would require guilty knowledge to be found as a fact by the jury. And so, in this case, the purpose of Joe Blain to murder Barber being shown, and appellant's complicity therein and presence at the homicide being also shown by evidence aliunde, we find *Page 251 no cause for reversal. Nor do we think the other errors assigned present any reversible ground, and the judgment is therefore affirmed.
Affirmed.
Judges all present and concurring.