I agree to the result reached reversing the case, but do not agree to all the views expressed in the opinion. The writ under which the officers operated and which they were attempting to enforce at the time of the homicide was not functus officio; and in my opinion the officers were authorized to act under it.
Under the doctrine of conspiracy only statements or declarations of T.E. Smith were admissible as against Mrs. Smith when she was not present, which were made after the formation of the conspiracy, and in furtherance thereof. I accordingly believe that the testimony as to what T.E. Smith said to the officers on the occasion of the first eviction, or shortly thereafter, when they were waiting for Mrs. Smith to get ready to go, was not admissible against her, she not being present at the time and there being no pretense that the conspiracy was then formed. However, the charge of the court adequately protected appellant against the evil effects of this testimony. Of course, husband and wife, according to my understanding, can be coconspirators to commit murder. All acts or declarations of Smith, such as getting arms and other preparations, when the circumstances indicate that the conspiracy had been formed, were admissible in evidence.
According to my view it was permissible for appellant to show any fact by competent evidence that rebutted the State's theory. The State's theory was to the effect that the conspiracy was against the officers who might undertake to re-execute the writ. On the other hand defendant's theory was that they did not intend to oppose the officers and did not expect the officers to attempt to re-execute the writ, but they did expect Brewster to attempt to regain possession. It was therefore competent for appellant to offer testimony in contravention of the State's theory on this point; and I think in this respect the advice of attorneys and what they told him could be shown.
I also believe that it was competent for appellant to show Grubbs' object or purpose in going into the house.